At this link you will find the NDAA Chairman’s markup, which includes:


The Secretary of Defense shall modify the Military Rules of Evidence to clarify that the general military character of an accused is not admissible for the purpose of showing the probability of innocence of the accused, except when evidence of a trait of the military character of an accused is relevant to an element of an offense for which the accused has been charged.  (Emphasis added.)

This is of interest partly because they are talking to the wrong person.  It is the President by executive order who determines and publishes what the rules of evidence are.  Certainly the secretary can direct the Joint Service Committee to study and propose such a change.  But what if the President (unlikely I know) decided against such a change in a future executive order amending the Manual and the rules of evidence.  This seems to show a generalized lack of understanding in the processes, about which many have commented.  As I watched the RSP hearings, I was struck by the number of people who did not seem to fully grasp how all of the moving parts really work.  Yes, I know there are some pretty smart and experienced military lawyers on the staff and such.

In this reportage of the just completed two-day public hearing of the SA Response Systems Panel, the writer notes the commitment of Sen. Gillibrand to offer:

about two dozen sexual assault provisions in the underlying section of the defense bill that originates in her Armed Services Personnel Subcommittee, including ideas from her sometimes rival on the issue, Democratic Sen. Claire McCaskill of Missouri, that would establish new rules for how victims and defendants should be treated. “We’re going to keep offering reform, reform, reform,” Gillibrand said.

It will be interesting to see what amendments on the treatment of an accused are offered, and whether or not they include such recommendations as full time defense investigators.

As an example of the need to fully understand the process I would cite to the proposal that a victim be allowed to make an unsworn statement on sentencing.  Bill Cassara’s written objections and thoughts were read into the record.  His modest proposals if the change were made were not fully adopted by his panel.  But it was interesting to see some push back from the full panel, especially the Chair.  In state and federal court there are extensive pre-sentence reports and “discovery” prior to the consideration of sentence.  This is unlike courts-martial where you typically roll into sentencing within an hour or two, and where the sole responsibility to present a defense case comes from defense counsel.  We all know that victims are rarely cross-examined during sentencing testimony, and usually there has been a pretrial interview and an opportunity for discovery.  That means that what the victim will say is pretty much known.  But what about the victim who introduces something substantial and unheard of before?  The panel proposal allows for the defense being blind-sided with little or no practical opportunity to respond.  The sub-panel chair’s response was that the defense could request a delay.  The full panel chair noted that in federal court such a need was unlikely because of the robust pretrial sentencing discovery and a delay of some kind, or request for sworn testimony subject to cross-examination that would likely be granted by the federal judge, if the new information were new and substantial.  Well again, we all know a delay to investigate is unlikely to happen in a court-martial.  Anyway, take a look and see what you think.  Of course I concur with Bill’s well reasoned proposal if unsworn victim impact statements are enacted in some form.

The two days of hearings can be viewed at C-Span, beginning here.

22 Responses to “NDAA Chairman’s markup”

  1. David Brahms says:

    In all this, the voices of the military defense community need to be heard loudly and clearly with the hope that mad dash to do something to address the problem of sexual assault in the military-A real and troubling problem.
    Sadly in that mad dash, justice for military accused of 120 offenses has suffered a death of a thousand cuts. This in constructs predicated upon *questionable data crafted and promulgated by persons who do not understand, but who frankly don’t care about anything but getting something/anything accomplished. 
    Regrettably, the legislative efforts to date and those proposed, as well as the regulatory actions of the DoD, will do nothing to protect my granddaughters, my Marine sisters against being the victims of sexual assault. Nor, for that matter will those actions honor the grim trials of my past clients who were sexually assaulted. Protection requires much more than a Draconian set of rules designed to unceremoniously put the heads of accused military members on a pike outside the entrance to our military bases.
    The changes to military justice and the establishment of mythically prolix victim advoccacy programs will insure that defense counsel can’t effectively advance the cause of their clients. Accusation will now equal conviction. Lest you think I have lost my way, the victim advocacy schema starts with a definition of victim that uses as a touchstone a report of a sexual assault. No inquiry or decision that the report in fact supports charges is a necessary predicate. Once the victim advocate apparatus embraces the victim, meaningful access by the defense team is denied and the victims’ testimony polished-though this is not the intent, that is the reality.
    That more changes to the law are in the works that would make the defense of a military member even more difficult, is troubling. As we move forward to divine how to effectively deal with the problem of sexual assault, we must insure that the rights of accused military members guaranteed by our Constitution and the UCMJ are not trampled.

  2. k fischer says:

    I watched the RSP part VI discussed immunity for a complaining witnesses’ collateral misconduct.  The all female, except for one, panel discuss doing a “study,” but nobody mentions how immunity for collateral misconduct would incentivize false allegations.  Every case and “study” I’ve read regarding false allegations state that a false allegation typically solves a need for the complaining witness, such as explain an STD, unwanted pregnancy, long period of absence, adultery, image, revenge, etc.
    Take US v. Wright, for example.  According to news reports, a female NCO invites two lower enlisted males to her residence to watch movies and drink, i.e. potential fraternization.  One of the witnesses sees them flirting, hears moans of pleasure from the bedroom, and the NCO said that Wright pulled her on top of him and raped her.  The next morning, she goes to the other Airman and says, “Wright raped me.”  So, it appears you have a fresh complaint, but it could be that she was worried about a fraternization charge, which she would get quasi-immunity.  
    Once again, the business person in me wants this immunity because I see an uptick in false allegations as CYA for collateral misconduct.  Then, talk about a 608 motive to fabricate.  Right now, the SVP can argue, “Why would she report this knowing that she would be investigated for fraternization?”  You give her immunity for collateral misconduct and that argument goes away.  Of course, the impression I generally get is that the perception of most Servicemembers is that a rape complaint will cease all adverse actions anyways.  So, perhaps the complaining witness in Wright made a pre-emptive complaint, or perhaps she got a little liquid courage, did what she intended to do, then the next morning regretted it, started thinking about how others would view her, and made the complaint.  I’ve never heard of an “on the bottom” rapist, but I suppose anything’s possible.
    So, I wonder if the immuntiy for collateral misconduct in sexual assault complaints will operate like the limited use policy for drugs.  If the person cries rape before the investigation begins for the collateral misconduct, then the collateral misconduct is limited use against the complaining witness.  But, if the investigation has already begun, then the person says rape, then the collateral misconduct is not limited use.  And, yes, I’m aware that this is an absurd thought, but so is conducting a study on how immunizing collateral misconduct will affect sexual assault reporting.  Oh, it will increase it, alright, but if you want to ensure convictions, then perhaps you should except out the “motive to fabricate” prong of 608 when it involves questions about collateral misconduct in a sexual assault case.  Or perhaps MRE 412 should be amended to include not just other sexual conduct, but rather any collateral misconduct is irrelevant.

  3. Charlie Gittins says:

    I had a rape case at Barksdale AFB where an AF Captain was accused of rape by another AF female Captain and he was on the bottom.  The cross of the woman on top had to be one fo the most entertaining of my career.  The members were clearly shocked on cross because she omitted that detail in all her statements and on direct.  We didn’t use it at the 32 because we figured it was going to trial anyway.  The guy looked just like Ricky Martin and all the women on base were dying for his attention.  The Captain who accused him found out she was not exclusive with “Ricky” and then cried rape. 

  4. k fischer says:

    I think I’ve heard this story before, although it never gets old.  The term “reverse cowgirl” was used during you cross, right?  I would pay money for the folder in your My Documents entitled “trial transcripts.”
    So, part VI also discusses the Article 137 brief at the initial entry training posts.  I wonder if they are still showing this video from 1978?  It kind of watches like a Stanley Kubrick movie, with a horrific twist at the end.

  5. fred says:

    Had a case about two years ago where female Sailor claimed rape and pregnancy as a result.  Turns out that her best friend was sent off the ship due to pregnancy two months before and her shipmates said “really mean things about her” after she flew off.  So, Sailor didn’t want friends saying same about her pregnancy, so she claimed rape.  To her credit, her conscience got the better of her and she came forward…4 months later…and admitted that she made the rape allegation up to avoid the negative scrutiny of her shipmates.  Kudos to the SPCMCA for sending her to trial for the 107. Female MJ awarded BCD and 8 months.  Seems that wouldn’t happen now…

  6. Lieber says:

    Fred:  that’s a tough one.  I’m not sure I like the result as it seems to me that the interests of justice are better served by incentivizing people to retract false allegations….if we send them to jail and a BCD for recanting then they’re just going to double-down on the initial allegation.

  7. ArmyTC says:

    A female Soldier in Fort Hood was recently convicted of false official statement for having made several false rape allegations. I don’t know the full sentence, but it involved reduction, forfeitures, confinement, hard labor (for the same amount of time that CID wasted investigating her claims) and a BCD.

  8. DCGoneGalt says:

    ArmyTC:  Good to see tsomeone in the Army leadership has the cojones to send those cases to court.  Until I see differently I will continue to believe that the AF/Navydoes not have the moral backbone to do so despite multiple cases with alibi, text message, and eyewitness evidence to the contrary.  The AF/Navy will send people to court for lying about just about anything except sexual assault allegations despite the fact that, other than national security issues, there is no more serious matter you can lie about in the current pocolitary (political correct military). 

  9. DawG says:

    DCGG:  I disagree with your conclusion about how the AF handles false allegations (when there is good evidence) based on my own experience as a JAG.  But don’t just take my word for it; check out

  10. anon81 says:

    What DawG says also holds true for Navy, including one back in March. Just because you haven’t personally seen one doesn’t mean the false rape prosecutions aren’t happening.

  11. Dew_Process says:

    Oh this snowball is just starting to roll down-hill!  I’ve got an AD male client whose civilian wife was sexually assaulted by a drunk NCO on post.  Client’s now facing a formal AR 15-6 investigation for “allowing it to happen,” i.e., a dereliction of duty I guess, because he’d left a small party to go outside to the smoking area to have a cigarette and the incident happened while he was gone.  We wanted to interview the civilian wife of my client, but alas her “lawyer” the SVC needs to “think about it” [translated as, confer with the TC prosecuting the NCO].  My client is the epitome of the “good soldier” and his Battalion CO wanted to deal with it by an informal Counseling Statement – until the 2 Star found out about it.
    The question becomes I guess, what is more damaging to “good order and discipline?”

  12. DCGoneGalt says:

    I happily stand corrected.  I have been disappointed on cases that had the evidence to prove falsity of a claim and became jaded.  Usually being jaded turns out to be the correct default but I am glad to be proven wrong.
    DawG:  I had heard rumors of the Keesler case but it will be interesting to see what the evidence is as to the falsity of the claim. It will be interesting to see the reporting on that one and if it covers the evidence, drops the coverage or does what the Beast seems to do and just attacks the military, in this case for the way informants are used and treated.  While I too have concerns about the way informants are utilized and discarded that has nothing to do with the issue of whether she lied about sexual assault. 
    anon81:  Any knowledge of the facts of the Navy case in March you are willing and able to share? 

  13. ExTC says:

    I dont know about the false Navy case in march, but I personally know of two other Navy successful prosecutions in the last couple of years for 107 for sexual assault. It happens but the stars have to align. Not everyone is lying outright when the case is an acquittal or not prosecuted.  But I was glad to see the cases I saw – both SPCMs with BCDs and confinement of a couple months. 

  14. Tami a/k/a Princess Leia says:

    People who don’t understand how our laws work are in charge of making them. Great. And a proposed “suspected repeat offender list?” I long for the old days, when common sense prevailed.

  15. Zeke says:

    Common sense hasn’t prevailed since 1950 when men and women sworn to uphold the Constitution betrayed their oaths and created a uniform code of military “justice” designed to systematically deny military members their “inalienable” right to a trial by jury.  The multitude of small cuts the accused is taking now is nothing compared to the wound his government has put in his side by denying him a panel large enough to engage in meaningful deliberations, where unanimity is required for conviction, where the members can be polled to ensure their unanimity, where prosecutors and judges are either directly elected or appointed by elected officials, and where those prosecutors are ethically bound to only try cases that they believe they can prove beyond all reasonable doubt.  We are fighting over the scraps.  The only military justice reform that needs to happen is the abolition of the UCMJ altogether.  

  16. Tami a/k/a Princess Leia says:

    There was common sense before 2006, before that Article 120 rewrite fiasco, when rape was easily defined, before the indoctrination, before the time that no one had responsibility for themselves because telling them to bear some responsibility for themselves is “victim-blaming”….

  17. af_dc says:

    On a related but slightly off topic note, two days ago I briefed an auditorium filled with first sergeants and senior AF NCO’s. We got onto the topic of sexual assault investigations and I asked how many of them thought that someone who was drunk could consent to sex. Not a single hand went up. I then briefed them on the actual legal standards for sex assault and rape with a special focus on what substantial incapacitation actually means versus the “one drop means no consent” drivel they usually get. Afterward I was approached by a self-identified victim advocate who just couldn’t believe what I’d told her because it completely contradicted every SAPR and SARC briefing and training she’d ever attended. I told her that I was sorry, but the SAPR and SARC trainers were teaching her and everyone else wrong. I and other defense counsel (and, it must be added, SVCs and TCs) are making a concerted effort to combat this insanity and pernicious misinformation, but we are, I fear, failing.

  18. DCGoneGalt says:

    af_dc:  I have sat through similar “one-drop” briefs in the past but at least in my experience, those seem to have gone the way of the dinosaurs recently.  I actually sat through one recently that accurately defined the law.  The current briefs continue the 2% victims don’t lie and victim-blaming and myths while focusing the Standdown day on offender recognition and the victim neurobiology.  In the “just because I am paranoid doesn’t mean I am not right” category I would say that it seems as if the goal is to turn potential members into strict liability Minority Report pre-cogs through unquestioning acceptance of an allegation based on out-of-court briefed pseudo-science and half-truths that would survive Daubert given the usual incapacitation mistake of fact issues in the usual case.

  19. RKincaid3 (RK3PO) says:

    This is sad, disgusting and ridiculous.  Victim unsworns?  Victim post-trial submissions? SVC tag-teaming with the government or opposing the government’s lack of objection to the Defense effort?  Witness (victim) “standing” as a “party” to litigation between the government and the accused?  Weakened procedural due process protections, dictated punishment (lack of panel discretion to tailor the punishment to the crime and the particular accused)?
    What is next?  Pillorying??  Death penalty?  Waiver of minimum due process conditions upon and as a comdition of enlistment/commissioning?  Can anyone with any intellectual honesty state with any credibility (and a straight face) that the new proposals (and recent enactments) are not more concerned with RETRIBUTION than with justice?
    When, as has been done with the UCMJ, one tinkers with a process without fully understanding it, doing so with an eye towards a particular result, it is inevitable that messes are made by the blind and absent-minded tinkering.  But the messes here are being made of people’s lives.  Another sad part of this mess is that no matter whom they consult, no matter how expert the consultants, the consultation is worthless/meaningless if the consultant doesn’t (can’t/won’t) speak their mind, or if, having freely spoken, their advice is ignored because it negates the intended result. 
    Sigh.  Politics.  Ugh!!!

  20. stewie says:

    What’s wrong with victim post-trial submissions? Why is that some horrible assault to due process and justice? So long as the accused knows about it and can respond, I don’t see the problem.
    Dictated punishment? I assume you are talking about mandatory discharges for sex assault cases. Not sure I have a problem with that to be honest. I don’t see keeping someone in convicted of a sexual assault.
    I don’t really have a problem with limited standing for 412 motions to victims.  I think the SVC program goes too far, but the reality is, it helps the defense about as much as it does the government.
    There are parts I do obviously have a problem with, but they have more to do with changes to definitions in the law that have made it easier (although the percentages suggest not really) to get convictions.
    Victim unsworns? OK, not great, but I suspect the panel is going to give the statement of someone unwilling to swear to it and subject themselves to cross not a ton of consideration and the reality is usually victims on cross aren’t really hammered on sentencing anyways.

  21. Lieber says:

    What Stewie said.  FWIW, I haven’t witnessed any of these “one-drop” briefings in the Army.

  22. DCGoneGalt says:

    Lieber:  I truly wish you had seen one of them, it was interesting to see  the clear division of (my estimated breakdown) ~ 50% of people not pay any attention to the brief, ~ 40% roll their eyes and sigh at the ridiculousness of the information, and  ~ 10% nod in agreement and argue with anyone who questioned the briefer.