That’s the title of a forthcoming article by Air Force judge advocate Major Matthew Burris, in the Buffalo Journal of Gender, Law, and Social Policy. You can access the article on SSRN at http://ssrn.com/abstract=2414494

Here’s a taste (from the article’s introduction):

Yet stories that feel archetypally right—even those supported by gripping anecdotes—might also grossly misrepresent reality. Such is the case with the military’s so-called “sexual assault crisis”: the intuitively compelling narrative advanced by the media, some members of Congress, victim advocacy groups, and others is not empirically supportable. While there is no logical proof for what does or does not constitute a crisis, at the very least, a crisis moniker suggests a widespread problem—and one that is growing and generally out of control. The best available data, however, suggest this is simply not the case.

As discussed in detail below, the data instead suggest that: (1) an estimated 98% of service members , or 1.324 million, experienced no form of unwanted sexual contact during fiscal year 2012;16 (2) between fiscal years 2010 and 2012, only two of the four Armed Services showed a statistically significant increase in the number of estimated victims of unwanted sexual contact and overall numbers are down from fiscal year 2006; (3) the prevalence of sexual assault in the military is comparable to demographically similar civilian populations; (4) senior military commanders are more aggressive in exercising their prosecutorial discretion in sexual assault cases than are licensed attorneys; (5) overturning the results of courts-martial are exceptionally rare events, particularly in the case of serious offenses like sexual assault; and (6) removing senior commanders’ authority to make prosecutorial decisions will not improve extant conditions. If this is what the data suggest, then the crisis narrative was arguably borne of something other than data. To be sure, it appears to have been borne largely of a disparate group of concerned and well-intentioned individuals thinking fast about a problem that cries out for thinking slow.

35 Responses to ““Thinking Slow About Sexual Assault in the Military.””

  1. Javert says:

    And now the other shoe from Fort Bragg drops <http://fox40.com/2014/03/30/military-prosecutor-facing-multiple-sexual-assault-charges/&gt;.   And I wonder if this is exhibit A of the problem Major Matthew Burris (as best as I know, no relation) mentions.  Senior military commanders (and, based on Sinclair, apparently senior JAGC leadership) are more aggressive than their civilian counterparts would be.  
     

  2. Charlie Gittins says:

    No idea whether the allegations are true.  But, the context of a pending divorce/custody fight  is something that always warrants thorough investigation because a strategic accusation can tilt the field.  If the allegations are false, the wife should be horse-whipped, but I’d setttle for a prosecution for perjury, not that I’ll ever see a female false accuser prosecuted for poerjury in my lifetime.  That would be so un-PC.  

  3. Zachary D Spilman says:

    Just so there’s no confusion, the news report posted by Jarvet does not refer to the author of the article discussed in this post.

  4. Javert says:

    @Spillman, thanks.  I tried to make that clear by saying “no relation,” but apparently I was ambiguous.  Author = USAF; news article = US Army.

  5. Sea Lawyer says:

    It is refreshing to hear a judge advocate voice his opinion about such a controversial topic in a public forum.  It is equally refreshing to learn that an academic journal would provide him the opportunity to voice that opinion. 

  6. Richard Stevens says:

    Sea Lawyer, I agree.  I also think it’s interesting that this article was written by an Air Force Judge Advocate, only because the recently departed USAF TJAG appeared to me to either be one of the “fast thinkers” or was, at least, willing to largely accept the narrative of the fast thinkers – as are so many others in the highest ranks and levels in the DoD and government.  Good for Maj Burris, but I’m guessing a link to this paper won’t end up on the USAF TJAG’s website…they have to keep room for more links to “significant sexual assault convictions” “the success of the SVC program” and other items that feed the narrative of the “fast thinkers.”  Maj Burris’ standard disclaimer that the “views expressed in the article are those of the author and do not necessarily reflect the official policy or position of the Air Force, the Department of Defense, or the U.S. Government” could, sadly, not be more true.

  7. ArmyTC says:

    I’m giving this a standing ovation in my office. I’m also considering having 535 copies printed and sent to Washington.

  8. k fischer says:

    Zach, 
     
    Great find!  After briefly skimming the first 30 pages of this article this morning, the article should be mandatory reading for every Judge Advocate, DoD employee, and politician who has weighed in on sexual assault prosecutions in the military over the past 5 years.  It gives a well supported synopsis of the making of the sexual assault crisis in the military with all the major players involved.
     
    I think that the contrast between Gillibrand and McCaskill is one of a fast thinker and a slow thinker.  Ironically, however, I think Gillibrand’s fast thinking idea to radically change the military justice system by placing the prosecutorial discretion into the hands of skilled prosecutors, while counter to the result she desires if that result is more convictions, is the better option to eradicate personal bias and unlawful command influence of Convening Authorities.  In the long run assuming that military judges do their jobs, the crisis, the rhetoric, and the actions of those members of Congress to punish Convening Authorities by blocking promotions will actually hurt victims, as it creates a perceived cloud of uncertainty over the fairness of every court martial involving an Article 120 offense, particularly if the investigator or the TC recommends that a charge should be dismissed.
     
    Ironically, perhaps I missed it, but it seems that within virtually all the sources cited there was not one mention of an accused having a fair trial.  Other than the few Reuters’ articles, it is difficult to find one media source that discusses which option ensures the Constitutional safeguards that should be afforded the accused.
     
    The psychology of how one perceives the issues surrounding the prosecution of sexual assault in the military makes even a defense hack like me consider how significant the false allegation issue is when all I see are what I consider false allegations because I am a defense attorney.  I think an interesting study would be to have all the SVP’s have a conference where they give an honest accounting of every sexual assault they investigated and how many allegations they found as false, what their perceptions are regarding the current state of sexual assault prosecutions in the military, and what changes they think should be made.  
     
    Or perhaps there should be exit interviews for outgoing SVP’s who, I am sure after 3 years of investigating and prosecuting nothing but sexual assaults, have opinions regarding sexual assault prosecutions and allegations.  They could keep the interviews confidential, although it probably would not be difficult to determine which SVP was on what case.  I’ve known two SVP’s at Ft. Benning, each of whom dismissed charges on a case after a 32 and after arraignment, respectively, so there are at least two false allegations with them.  These were cases that were preferred.  Think about the cases where an allegation was made, but not preferred.
     
    As for the accused Major Burris, I wish him the best.  Many times when a future ex-spouse makes a false allegation and I get a call from the falsely accused, I advise them to keep quiet and let her talk and talk and talk and talk because the more she talks, then the more she is going to feel comfortable lying and the more outlandish her lies will become.  I don’t know her or this accused, but from what he described it sounds like that’s what happened.  
     
    Ironically, CG, your average counter-intuitive victim behavior expert would testify under oath that just because a late allegation was made during pending divorce/custody fight is perfectly normal because a woman might be worried how she will feed her family, whereas, now that the divorce is proceeding and she has been freed from that oppressive environment, she has finally gained the courage to report what happened.  And, that might be true, but there is no way to prove beyond a reasonable doubt, short of video or audio evidence, that the allegation is true.  Sounds like this case is going to be dismissed, so it will be interesting if Speier and Gillibrand will play the “lawyers taking care of their own” card, the way they did in the Franklin and Wilkerson case.

  9. Matt says:

    This sounds like a lot of victim blaming.  I was taught repeatedly by Army trial counsel that alleged victims never make up allegations of sexual assault.  Also, I’m sure this prosecutor has used experts who have testified in court that whatever the alleged victim did or did not do, no matter how counter-intuitive, it is consistent with being a victim. 
    On a serious note, I hope that if he is innocent he will be cleared.  But I do hope the publicity of these types of cases will change the narrative coming down from on high.

  10. RKincaid3 says:

    Well, since the discussion is about military prosecutors being investigated, I have some GREAT news on this front.  You will recall that last month I mentioned that a friend of mine from my Grad Course was being investigated;  he was a prosecutor in the Marine Corps.  He and I spoke last night and he asked me to get the word out, and I gladly agreed!
    MAJ Tom Jasper, USMC JAGC, faced Board of Inquiry and the Board returned a finding of “NO BASIS.”  He moves now to his next assignment at the Commissions, and he is grateful for all the support of those who reached out to him.
    Now, what I want to know is why aren’t the national or military media runing with this story?  Why were they quick to villify him and report on a mere allegation as if it were gospel? 
    And why are they not now being so zealous in exposing that the allegation was tested, weighed, measured and found to be empty?
    The system needs to quite reporting the names of either victims or assailants until all the facts are in and the matter goes to court.  Otherwise, this kind of injustice will continue to run rampant!

  11. Ed says:

    In my office with call this SAID,  Sexual Abuse Incident to a Divorce. Its amazing how after being a great father for any number of years he is suddenly an abuser backed up by a 23 year old DCF (whatever the local version is) investigator whose brain power is very often sub par. I had one who did not know what the word  genetalia meant.

  12. k fischer says:

    RK3,

    Now, what I want to know is why aren’t the national or military media runing with this story?  Why were they quick to villify him and report on a mere allegation as if it were gospel?

    It’s because he was the Marine sex assault prosecutor.  What better way to advance the narrative that sexual assault in the Military is out of control and an epidemic if the persons who are charged with prosecuting sexual assault are committing sexual assault???
     
    And, if your question was not merely a rhetorical one, then how does it change your views when the issue of (1) accuser privacy in the press vs. the presumed innocent accused’s lack of privacy in the press or (2) using the term “victim” to describe a complaining witness before anyone is ever convicted, hits so close to home?  I’m sure this is the way Brandon Wright feels right now, but he’s just an Airman first class, so it’s no big deal, right?  The Military has a war to win against it’s number one enemy.  Not Al Qaeda or the North Koreans, but the enemy called sexual assault.  
     
    How do you feel about the Brian Lewis, who testified in front of Congress as an MST survivor, commenting on the article stating that Jasper was facing a BOI:
     

    The problem with this story is that the Marine Corps sent this crime to a Board of Inquiry instead of a court-martial. I fear this is another attempt to sweep potential embarrassment under the rug instead of facing the culture of sexual assault which pervades the military.

     
    I wonder if some of these Sexual Assault attorneys are feeling like pastor Martin Niemöller.  Because I fear that there is nobody who can stand up against he machine created by this crisis.

  13. RKincaid3 says:

    KF:  Amen, brother.  And my question was not simply rhetorical.  I don want the media to be responsible and undo the damage it does by lopsided reporting consistent with pushing a political agenda behind the myth of “rape culture.” 
     
    To my mind, neither a “victim” nor an “accused” should be identified publically until trial proceedings are under way.  And my rule is simple: annonymity for both or none.  To allow otherwise is to allow destruction by mere accusation–no matter the ultimate outcome.  The rules must apply equally to both the “victim” and accused with equal force of protection/exposure. 
     
    As for Brian Lewis, his version of events is inevitable.  When one has discretion to resolve a case–be it a commander or a Prosecutor, one must necessarily accept how that person exercises that discretion–some cases may be handled differently than others and all for varying and legal and apporpriate reasons.  And while I support eliminating commanders from the MJ chain of command (but keeping them in the “disciplinary” chain of command), it is important to remember that whenever there is discretion, someone will argue that it has been abused.  And the courts have rules for resolving those concerns on appeal. 
     
    But ulike the courts, the problem with this current situation is that Congress is alleging commanders have abused their discretion and it has tinkered here and there with the UCMJ to the point that many of its provisions are or may soon be determined to be internally inconsistent, if not largely ineffectual at achieving the stated purpose (aside from villifying and destorying the accused on nothing more than allegation). 
     
    Congressional tinkering has been designed to curtail a commander’s discretion but Congress is oblivious to the fact that someone else will have to exercise discretion in lieu of the commander–preferably a prosecutor.  Will Congress be any more happen with those discretionary decision?  NO!  Because like now, under the new system, they will NOT be concerned about the PROCESS, only the RESULTS which much equal CONVICTIONS or, to their way of thinking, the system is NOT combatting a mythical, patriarchal “rape culture.”
     
    As for the use of the word “victim” vice “complaining witness,” I prefer the latter for intellectual and procedural integrity in court, but the former is easier and quicker to type in an online discussion.  Should I be more consistent? Yes.  Fail on my part.
     
    Finally, as for the Niemöller. quote:  Again, one of my favorites and yes, it is more apropo in this current paranoia-inducing, hyper-political environment than just about any other quote.

  14. RKincaid3 says:

    The line that starts with “I don want” should read “I do want”.
    Sorry.
     

  15. k fischer says:

    I just read the article again over lunch.  Matthew Burris, if you are out there, out-freaking-standing, Sir!  
     
    I am inclined to believe that you would prefer that Commanders retain control over the UCMJ, as it seems the slow thinkers would leave well enough alone.  I would disagree on that position because all the well-cited issues you address with nary a wasted word (although I had to look up abjure and redound) has created an environment rife with the appearance of UCI, bias, and CYA on the part of Commanders that it would be difficult to continue the Commander in control tack.  
     
    I just hope this isn’t for you a “Jerry Maguire manifesto” scenario where you suffer adverse career consequences because you were merely telling it like it is.  Once again, outstanding job.

  16. RKincaid3 says:

    Correction.  “MAJ Tom Jasper” is a LTC. 

  17. phil cave says:

    First they came . . .[1]
          Unwittingly, retired former deputy judge advocate Major General Charles Dunlap was channeling Martin Niemöller’s admonition to those who fail to stand up in the face of a great wrong.  Major General Dunlap was commenting on the refusal of Senator McCaskill to allow a vote on Lieutenant General Helms’ nomination.
     
     
    “Let’s see how many senators are prepared to vote against a women (sic) who is one of the most qualified officers’ on the planet for the job simply because she exercised her conscience as the law demanded her to do,” Dunlap said in an Oct. 24 email. “If people doing their job as Congress designed it are nevertheless punished like this, who is next? Judges? Defense counsel? Anyone in uniform?
     
    Jeff Schogol, Lawmaker sustains 6-month hold on 3-star’s nomination, Air Force Times, October 27, 2013, at 3.  This is a current article close enough in time to trial to be concerning.  Here we are also concerned for those Major General Dunlap missed — the panel members.  We know convening authorities are already a target.
     
     
    For instance, Governor Gibson of Vermont, was very wroth at the treatment he had received as a member of a court-martial, being called in by the commanding officer and reprimanded.  And when Mr. Gibson told him that he was a lawyer and that they could not tell him how to decide cases, that the choice was to get him off the court or let him use his conscience on the case, they got him off the court.
     
    Statement of Prof. Edmund M. Morgan, Jr., Harvard Univ. Law School, before the House Subcomm. on Armed Serv., 81st Cong., 1st sess., on H.R. 2498, 1949.[2]
     
     

    [2] See also, Edmund M. Morgan, Papers on the Drafting of the Uniform Code of Military Justice, available at http://www.law.harvard.edu/library/digital/morgan-papers-ucmj.html
     
    For you Kincaid.

  18. af_dc says:

    Mr. Cave, the doc links in your last comment aren’t working.

  19. k fischer says:

    Phil, 
     
    And one has to look no farther than the March 21st edition of the Stars and Stripes to see Congress going after a military judge for the sentence he gave in the Sinclair court martial:
     

    Rep. Jackie Speier, a California Democrat, called the punishment “laughable.”
    “This sentence is a mockery of military justice, a slap on the wrist nowhere close to being proportional to Sinclair’s offenses,” Speier said. “The misuse of government funds should be enough to fire Gen. Sinclair. There are plenty of former government employees who have been canned for less.”

    Now, i think that Judge Pohl has been attempting to retire for a while now, but what if he was vying for one of the elusive Army JAG stars.  You typically see military judge’s retiring as an O-6.  Has a former MJ ever been a TJAG or made GO rank?  If so, do you think Congresswoman Speier would question Judge Pohl’s sentence in Sinclair if he was selected to be the next TJAG? Of course, I think he possesses much more integrity than to allow some Congresswoman’s ignorant comments to sway his discretion, but it sure doesn’t prevent some in Congress from being bullies.  And, I can’t necessarily say that it is completely innappropriate for a Congressional representative to comment on a sentence that is too lenient, as I would want someone in Congress to comment on a sentence they believed too harsh or a proceeding that is unfair for a client I was representing.  Of course, that would never happen if the court marital involved a 120 specification because a “fair trial” appears to be the least of their concerns..

  20. af_dc says:

    What gets me about Rep. Speier’s comment is that she has completely failed to educate herself about what a punitive discharge is, when it is appropriate, and what it means. It’s not just someone being “fired” from the military, which I think is what she thinks it means. It’s a permanent, serious stain on their reputation and a mechanism to strip them of all military benefits earned up to that point. She also has failed to grasp that BG Sinclair will most certainly be “canned” — just administratively rather than punitively. It drives me nuts that this lady sees fit to comment on the military justice system without doing even the most basic research into same.

  21. RKincaid3 says:

    Mr. Cave:  Thanks much for the additional reference material.  It is much appreciated!

  22. A. Dreyfus says:

    AF_DC, you hit the problem on its head! When would a member of Congress care to inform themselves of a current process, system or law before passing new legislation or commenting wildly about it? As society goes, so too its representatives. It was not sound research or numbers that formed the basis of the “sex assault crisis”, something I think that Air Force Major Burris’s  piece addresses somewhat well. It was possibility and paranoid conjecture that led some, like Congresswoman Speiers to lash out at something she felt she could change. Also, K. Fischer, I am not familiar with a former trial judge becoming a GO, though if I am not mistaken the former Army DJAG sat on the ACCA. Obviously that position would not expose a judge to the same scrutiny, but perhaps in the future?

  23. ArmyTC says:

    In his capacity as USALSA Commander, then BG Tate was also the Chief Judge of ACCA. He sat on several cases and was later promoted to MG. I do not know if TJAG or DJAG sat on panels when they were USALSA Commanders/Chief Judge.

  24. RKincaid3 says:

    Mr. Cave:
     
     
     
         Thanks again for the reference to the Harvard Law Library records involving the drafting of the UCMJ. I have much research to follow-up on.However, in my brief perusal of the website thus far, I notice most glaringly the following date: 1949–a full sixty-five years ago!
     
         And Prof. Morgan’s 1949 quote, below, stands out as the pronouncement, then, of a great compromise, which was quite appropriate for the times:
     

    “We were convinced that a Code of Military Justice cannot ignore the military circumstance under which it must operate but we were equally determined that it must be designated to administer justice. We, therefore, aimed at providing functions for command and appropriate procedures for the administration of justice. We have done our best to strike a fair balance, and believe that we have given appropriate recognition of each factor.”

     
          The Professor’s statement of compromise was, in 1949, a seismic shift in the way military justice matters would be handled as compared to how that had been handled 40 years.In the 65 years since Professor Morgan made that statement, American society has changed.Its people (its volunteers) have changed–just as the American’s who would serve after 1949 had changed significantly from prior generations.Each successive generation–better educated and more demanding than their predecessors–expected more from the system than they would get and the system had to change–it had to evolve.
     
     
     
         What is the common thread between the “revolutionary” changes that distinguished the UCMJ in 1949/50 from its predecessor and the need today or tomorrow for the next set of evolutionary changes that must inevitably occur?It is simple: the education of the public at large who are the recruits of today and will be the recruits of tomorrow.As Americans have expanded and broadened their formal education, so too has evolved their expectations of what is proper, right and just–and their tolerance for mistreatment, real or perceived, in what is supposed to be a “justice system,” shrank.
     
         The pattern of education driving social change in the military reminds me of Sir Edmund Burke’s defense of the American Colonies and their reputation for being difficult to deal with:
     

    “Permit me, Sir, to add another circumstance in our colonies, which contributes no mean part towards the growth and effect of this untractable spirit. I mean their education. In no country perhaps in the world is the law so general a study. The profession itself is numerous and powerful; and in most provinces it takes the lead. The greater number of the deputies sent to the congress were lawyers. But all who read, and most do read, endeavour to obtain some smattering in that science. I have been told by an eminent bookseller, that in no branch of his business, after tracts of popular devotion, were so many books as those on the law exported to the plantations. The colonists have now fallen into the way of printing them for their own use. I hear that they have sold nearly as many of Blackstone’s Commentaries in America as in England. General Gage marks out this disposition very particularly in a letter on your table. He states, that all the people in his government are lawyers, or smatterers in law…
     
    This study renders men acute, inquisitive, dexterous, prompt in attack, ready in defence, full of resources. In other countries, the people, more simple, and of a less mercurial cast, judge of an ill principle in government only by an actual grievance; here they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle. They augur misgovernment at a distance; and snuff the approach of tyranny in every tainted breeze.”

     
          While Burke was defending the colonies’ general churlishness towards England to the average colonist’s education in law, the point is the same in the 21st Century. Though law is not nearly as studied today as it was in Burke’s time, each generation of Americans is much more educated, generally, than the last, and as a society, that significant education erodes tolerance for perceived injustices.The UCMJ of 1949/50 is full of actual and perceived injustices in practice, which beget discord.Only today, with an all-volunteer force, discord is much more dangerous to the nation.It will result in fewer recruits and fewer re-enlistments–which will hurt national security.
     
          For the future, not only of the service members who serve, but also ofthe nation, the UCMJ must evolve.The UCMJ today is no more appropriate a “justice system” for 21st Century American service members than were the Articles of War to the 20th Century American service members.The system must evolve beyond the comfort of “we’ve always done it this way” simply because Amercans will no longer accept the way we’ve always done it.
     
     
     
     
          These are challenging times that call for significant, dynamic and seismic changes.And so far, we are failing to meet that challenge–and leading that failure is Congress and those among us who allow it or encourage it with our silence.

  25. Dew_Process says:

    @ Richard Stevens:  2 things, (1) I’m not quite sure who you’re referring to even after 30 years as an AF judge advocate. The only real “critical thinker” during that time span – and someone willing to publicly talk and write about things that needed to be thought about and addressed, has been imho Maj Gen Charles Dunlap, Jr.,(ret), currently at Duke Law School.  But, before anyone goes “ga-ga” over the AF JAGC, recall the former AF TJAG Fiscus fiasco [http://en.wikipedia.org/wiki/Thomas_J._Fiscus ][retired as an 0-6, Colonel]; the Colonel Mike Murphy debacle [http://en.wikipedia.org/wiki/Michael_D._Murphy ][retired as an 0-2, 1Lt]; or the Kelly Flinn “affair” [http://en.wikipedia.org/wiki/Kelly_Flinn_incident ]
     
    (2) But you nailed it as to the AF JAGC website!  http://www.afjag.af.mil/shared/media/document/AFD-131219-083.pdf &nbsp; Two of the 3 articles in the Military Justice section apply.
     
    In the category of “thinking slow,” I might add studying some history may be of significant assistance.  During the two years of hearings post WW II into the then abysmal state of “military justice,” the Congressional Hearings rightfully focused on the “evil” of unlawful command influence vis-à-vis Article 37, UCMJ.  UCI is of course one of the military topics du jour yet few know, much less understand that Congress clearly intended to make UCI an offense under the UCMJ, albeit in a round-about way. One of the intended purposes of that little-known and (almost) never utilized punitive article, Article 98, UCMJ, was intended to be the means to punish those engaging in UCMJ.  One merely needs to look at the Index to the Legislative History [page XIII] to see that under the category “Command Influence (Art. 37),” one then sees “Punishment (Art. 98).”  http://www.loc.gov/rr/frd/Military_Law/pdf/title_index.pdf
     
    Of course the problem here is that this depends on SJA’s and TC’s with the moral and professional fortitude to advise Commanders and Convening Authorities that UCI can (and should) be prosecuted – while those same SJA’s and TC’s look into the mirror.  All it would take is for one courageous military judge to “refer” the matter of UCI for criminal investigation to the TJAG concerned and the pendulum would come flying at breakneck speed back the other way.
     
    Finally, just to point out that the military does not have a monopoly on false or even spurious complaints, here’s a sad story, where even a $9 million dollar verdict, will not put his life back together again . . . . http://www.thenationaltriallawyers.org/2014/03/exonerated-father-9-million-false-sex-abuse/

  26. Dew_Process says:

    Umm, for reasons unknown, the link to the AF JAG portal is screwed up.  Hopefully this one works!
     
    http://www.afjag.af.mil/shared/media/document/AFD-131219-083.pdf
     
    There should be nothing after the .pdf at the end.

  27. A. Dreyfus says:

    Am I alone in believing that the Air Force JAG Corps is excessively enamored with the SVC program?

  28. RKincaid3 says:

    A.D.:  No, you are not alone.  If memory serves, the SVC program was an AF idea and now they pride themselves in the inter–um–invention that is leading the race to the bottom of the Congressional pit of injustice where all that matters is the subjective satisfaction with the outcome of a trial, no matter how un-just the process used to achieve those results.

  29. NotSoFast says:

    RK–that’s a bit much.  You can argue whether it’s money well-spent, or whether there’s any legitimate role for SVCs at trial, but to argue that the provision of an attorney to a client entitled by statute to legal assistance is “leading the race” to the “pit of injustice” is unfair to both to the attorneys and clients who (independent of the criminal trial) have legal issues to contend with.  There are good and bad people in every segment of our occupation, but in my view providing free legal counsel is rarely the source of injustice.
    But then, I am an AF guy…

  30. afsvc says:

    @RK3
    To start, I enjoy reading your posts, not because I agree with all of them, but because it is readily apparent that your are passionate about the subject. One thing you note over and over again is that a ‘true “justice” system’ is about process rather than outcome; I wholeheartedly agree. The sanctity and fairness of the process to my clients is what is I focus on and the way we (in the AF SVC program, at least) have been trained to think with respect to our representation. We are expressly instructed that our job is not to see the ACC convicted and I can tell you that for my clients the government’s goal of securing a conviction is often, if not usually, subordinate to other interests my clients express, chiefly privacy and minimal further disruption of their lives.
    Put simply, I disagree that ensuring a fair process for the AV is necessarily a race to injustice for the ACC. MRE 412 and MRE 513 existed previous to SVCs and aforded rights to AVs already; what prejudice occurs to the ACC by having someone with a bit more training then a 20 year old high-school grad articulate why she doesn’t think it makes sense that she has to be crossed on whether she was molested as a child? The arguments we are making on this issues are not particularly new or novel for the ACC (or the gov’t who may also disagree) to respond to, but they are based on actually having a meaningful conversation with the AV about her feelings about what is going on as opposed to the 5 min discussion during a recess that I’ve seen TCs have with AVs on these issues in the past.
    Further, this idea is not particularly novel; there are plenty of instances of 3rd party intervention for limited purposes where this are recognized rights as there are here and was recognized by CAAF; no one is asking to to anything in front of the members in findings.
    The above is just with respect to the process when we actually get to trial; I have a number of client’s cases resulting from 3rd party reports (e.g. they told a friend in confidence and never expected or wished to make a report to LE). Many of my clients will tell me that they they know it will be their word against the ACC’s, that (often) they feel like they made bad decisions prior to getting to the point of the assault, (often) that this is a friend whose life they don’t want to ruin, and (quite often) that they just want everyone to leave them alone. My standard approach to them is that I understand all of those concerns, that these cases are always difficult, and that there is nothing wrong with not wanting to put yourself through this process; often they decide they just want the process to stop.  Unlike in the civilian sector however, DoD LEAs don’t just walk away and will take the position that a full investigation must proceed even w/o cooperation which is frustrating to my clients (as I’m sure it is to the ACC); my job then quickly becomes an exercise in stymying the investigation as much as I can through a refusal to cooperate in any way. In the political environment so frequently criticized here, where many seem to believe that as long as JA can put an AV on the stand, we are going to trial, our involvment and ability to explain to they client that they really don’t have to do this is they don’t want to, and to make that clear to the players in the process (who are often, if unintentionally, intimidating to our clients), is sometimes they only way to stop the train.  
    Finally, some of your criticisms are IMO completely fair; for example, why do we only represent AVs in sex assault cases when there are AVs in plenty of other types of serious cases out there? I think we all know the answer to that is the laser focus on one subset of crimes at the moment which is what spurred the introduction of this program, but I can also tell you that the belief in my community is that eventually that will change and we will take AVs in other types of cases.
    I don’t expect the Defense community to like our program, though I could point out a few ADCs who have been happy to work with me when it served their client’s interests, and, to A.Dreyfus’s point, there are certainly senior AF JAGs who strongly opposed this idea (and still do). My point is that, whatever objections there are, from my personal observations and the (honest, I think) feedback I am getting from DC I work with, the idea that this program has somehow fatally changed the dynamics in court to disfavor the ACC is not supported by ground-truth.  

  31. phil cave says:

    Three fairly recent anecdotes about SVC’s.  I wonder if there might be more.
     
    1.  CW shows up to testify at the 32 with a lighted candle at the witness chair, because it helps relax.  Yes, it’s weird, but belay the snotty comments on this and focus on the issue of what exactly are or should be the accommodations for sexual assault witnesses, compared to any witness, and the the constraints of the SVC program.  As a defense counsel I might not necessarily object to this in front of members – it’s a perception and credibility issue.  If it helps testify at the 32 so the CW is willing to testify at the 32 rather than not show up, why not let it be.
    2.  SVC is allegedly cautioned by civilian authorities about interfering with a civilian police investigation, because the SVC thinks the representation includes dealings with civilian authorities.
    3.  SVC provides talking points for CW who is to testify by phone at a 32 (which she apparently has in front of her while testifying).  Also, the SVC is overheard (and taped) by the GR, IO, DC, “coaching” the CW as she answers questions.
     
    Of these three, the third is in fact a real concern to an accused and the system, and great cross-examination if the case goes to trial, after a motion to recuse the specific SVC.  I would place that in the realm of potential ethical issues as well as potential witness tampering concerns, and if not that serious certainly an issue of good judgment.  If the “allegation” is correct, the parties were lucky to have caught it.  I wonder how many other similar incidents are out there which need to be addressed.  The talking points would arguably be discoverable, so this opens up the issue of discovery and the extent of attorney-client privilege.  MRE 612 comes to mind in terms of writings such as talking points, emails, text messages, and in some instances attorney notes of interviews.  I believe I have referred to this issue of SVC notes in several prior comments.  I’m thinking a Cf., to when a writing that relates to the subject matter of the testimony of a government witness has been “signed or otherwise adopted or approved by” the government witness, it is producible under the Jencks Act even though the writing was prepared by the government lawyer [read SVC] who interviewed the witness.  This might be an appropriate remedy in a case such as this where a SVC is alleged to have coached a CW.  Goldberg v. United States, 425 U.S. 94, 97 (1976); United States v. Vanderweir, 25 M.J. 263 (C.M.A. 1987)(in camera review of TC (read SVC) notes is a preferred method of establishing need for discovery of notes).
    I have no problem with the SVC program.  But coaching and manipulation of testimony crosses the line – again, if my information is correct.

  32. afsvc says:

    @pc

    “3.  SVC provides talking points for CW who is to testify by phone at a 32 (which she apparently has in front of her while testifying).  Also, the SVC is overheard (and taped) by the GR, IO, DC, “coaching” the CW as she answers questions.”

    No quible there; clearly well beyond the line of permissible representation. If that is happening, it needs to stop; but again, at least in the AF, unequivocally not something we are being instructed would be permissble or to do.
    As to the other examples; I am not a big fan of these types of “accomodations” (candle, service dog etc) but if the client wanted one: why not, I guess? Again, my job is not to do what’s best for the conviction, but what is best for the client and if they a) want to testify and b) feel they need something like that, fine. Also, I wouldn’t feel any differently if a victim of a non-sexual assault wanted one.
    Finally, as to the civilian investigation, we (again, in the AF) are authorized to advocate client interests to civ authorities for service-eligible clients with cases being worked by the civilians. As to “interference,” it would obviously depend on the facts: I’m free to advise my client not to, for example, turn over her cell-phone to LE absent a warrant or subpoena. I’m obviously not free (whether in a mil or civ case) to advise her to then take the cell-phone home and toss it in the microwave in case a subpoena or warrant is issued.

  33. RKincaid3 says:

    @ NSF: My apologies.  You are correct.  I was a bit over the top with my rhetorical flourish.   That is what happens when I am typing while on the way to class—there is a lesson there for me!  That admission being what it is, I do seriously doubt that any system that allows “tag-teaming” between witnesses and the government against an accused is not JUST.  SVCs are being substituted for the judge, whose role was to limit the impact of the process on victims of crime-any crime.    SVCs with standing to intervene on behalf of witnesses are simply improper, no matter how politically satisfying the outcome.  I do not desire to vilify the SVCs who, like defense counsel are simply defending their client’s interests and like defense counsel, some have some real sketchy, less-than-worthy clients.  But both SVCs and DCs have a job to do and they should do so zealously.  And yes, I should have been more precise in sticking with my main point–there should NOT be an SVC program, for historical, economic (fiscal and judicial) and social policy or other “just” reasons.  But we have one, and while we must presently tolerate their interference, we can and should complain about the damage they have done or are doing to the process and the wisdom of the programs existence.  Its existence does support the “ends justify the means” analysis.  But thank you for calling me out for my excess!
     
     
    @ AFSVC:  Regarding my comments about the SVC program, please see my comments, above, to NSF!  Thank you, too, for calling me out for being over the top.    I do see the merits to your comments and they are much appreciated on many levels.  As is your keeping me honest.
     

  34. dyskolos says:

    I’ll reiterate a point I made awhile back: the SVC is VWAP on steroids, except exclusively for sexual assault victims.  All victims should have Victim Witness assistance as the program envisions it.
    I don’t know if anyone saw the referenced Washington Post article, “Sex assault victims find help navigating military justice system,” but there were some troubling narratives there as well.  

    Sen Kirsten Gillibrand (D-N.Y.), who has been among the most outspoken congressional critics of the military’s handling of sexual assault cases, said that SVCs have told her privately that they sometimes advise victims not to report, especially if they were drinking at the time of the incident. SVCs also have advised clients against seeking mental health treatment, urging them to speak to a chaplain instead to protect those private conversations and keep them out of court.
    Although the rules for military trials, have not yet clearly defined SVCs’ participation, Gillibrand said she will seek broader authority for them.
    “Having an advocate for every victim is very meaningful, but they need a meaningful role within the legal system and that is something we need to keep working on going forward,” she said.

     
     
    Aside from the additional Congressional reengagement on this issue, a couple of questions arise. First, how or why does a victim contact the SVC before contacting the SARC or VA?  Second, seeking mental health is beneficial for the CW’s overall recovery, and there is something squirrely about avoiding it just because the CW or her psychologist may have to be cross-examined in a court-martial one day.  I know the program is new, but there ought to be some boundaries drawn, not make the role broader as the Senator suggests.