Yesterday I posted some analysis of the Secretarial implementation of guidance for Article 32 preliminary hearings. The ensuing debate was quite contentious. It continues in this week’s Scholarship Saturday, with Jonathan Lurie, The Transformation of Article 32: Why and What?, 29 Wis. J.L. Gender & Soc. 409 (2013) (available here).
The article is part of the Special Symposium Issue of the Wisconsin Journal of Law, Gender & Society: “The Threat From Within: Current and Alternative Response To Sexual Assault in the Military” (full contents available here). Jonathan Lurie is a professor emeritus at Rutgers University and he is the author of two books documenting the history of CAAF.
Professor Lurie’s article discusses the “‘notorious’ Article 32 investigation” in the Naval Academy sexual assault case (part of our #2 military justice story of 2014, and also a topic in my op-ed published in the Baltimore Sun), and he asserts that “the military judge who recommended that this case not be referred to a court-martial is the same official who permitted the excessive cross-examination of the alleged victim, later characterized as causing ‘heavy damage’ to the [sic] her testimony.” Lurie, supra, at 409-410. It was Navy Commander and military judge Robert Monahan who recommended that the charges not be referred for trial, and his report was quoted by the Washington Times as stating:
As difficult as it would be for the government to prove beyond a reasonable doubt that (the alleged victim’s) professed lack of memory at the time Midshipman Graham engaged in sexual activity with her was due to her being substantially incapacitated, the government’s task becomes extremely more difficult, if not impossible, due to the heavy damage done to (the alleged victim’s) credibility at the Article 32 hearing.
Of course, the accused who actually suffered a trial by court-martial (a kid by the name of Midshipman Josh Tate) was ultimately acquitted of sexual assault after a bench trial before a military judge.
But that won’t stop a good narrative. Professor Lurie continues:
[O]riginally intended to protect the defendant, somehow Article 32 evolved into a device for abusive cross-examination of the plaintiff. To be sure, the presiding officer easily could have restrained defense counsel from the type of abusive cross-examination inflicted on the complainant.
Lurie, supra, at 411. Commander Monahan – who justly enjoys widespread respect as an excellent military judge – apparently is little more than a neanderthal misogynist. And as for those ruffians who represented the now-exonerated accused, Professor Lurie has a few choice words:
It will be recalled that in the “notorious” cross-examination conducted on behalf of the Annapolis football team defendants, their counsel subjected the complainant to what at best can be described as barely on the cusp of acceptable trial conduct, and at worst totally beyond appropriate trial procedure.
Lurie, supra, at 413. You read that right; both the Article 32 investigation as a whole, and the cross-examination of the alleged victim in particular, are separately described as “notorious.”
The article continues:
[T]he military remains in general control of its military justice system.
Lurie, supra, at 413. Oh, the horror.
Further, the hierarchical nature of military life remains unchanged.
Lurie, supra, at 413-414. Can’t have that.
Change [in the military] comes slowly, and more often than not, when enacted, it is a result of civilian imposition rather than voluntary military innovation. Three examples can readily be cited. The decision to integrate the military in terms of race came only after President Truman ordered it. Similarly, the decision to admit women to the service academies resulted from congressional pressure. Most recently, the congressional decision to repeal the inappropriate and unnecessary statute known as “Don’t Ask, Don’t Tell” probably rendered a future Supreme Court decision concerning gays in the military unnecessary.
Lurie, supra, at 414. Here the gloves have come off. The military, it seems, isn’t just misogynistic, it’s also racist and homophobic. Professor Lurie, you owe me a keyboard, because I just vomited on mine.
The article ends with the following paragraph:
It only remains to inquire what happened to the three midshipmen charged with sexual assault, mentioned at the very outset of this paper. Two of the cases never came to trial, and the third resulted in an acquittal by a court-martial. Describing the trial of Joshua Tate, lawyer Jason Ehrenberg observed that “we went through this whole process because the superintendent of the Naval Academy fell prey to political pressure. The system, is broken.” So it is, and while there seems to be almost unanimous agreement on this point, consensus breaks down concerning the next step. Senator McCaskill’s bill now goes to the House, with future action unclear. It remains apparent, however, that the military is incapable of providing consistent and effective resolution of sexual assault cases within its ranks on its own.
Lurie, supra, at 420. Here we reach a consensus. The military is proving itself incapable of providing consistent and effective resolution of sexual assault cases. But where Professor Lurie sees abuses inflicted upon complainants, I see the maltreatment of those who are accused. For it is better that n guilty persons escape punishment than that one innocent suffer.
Thanks to Gene Fidell’s Global Military Justice Reform blog for alerting me to Professor Lurie’s article.