In United States v. Joseph, No. 201300460 (N-M. Ct. Crim. App. Feb. 19, 2015) (link to slip op.), a three-judge panel of the NMCCA concludes that the finding of guilty of making a false official statement is defective, and must be reversed, because the members:

excepted the following words from the Specification: “made to Naval Criminal Investigative Service agents . . . an official statement to wit.” In place of the excepted language the members substituted the words, “provided an affirmative response to NCIS that she had been raped by [Sgt MP].”

Slip op. at 4. The false statement was an accusation of rape made by the appellant (a female corporal) after she engaged in sexual intercourse with MP (a male, also a corporal at the time). Shortly after that encounter, the appellant discovered MP engaging in sexual intercourse with her female roommate. Then:

After discovering PFC RC [the roommate -z] and Cpl WP [the male -z] together, the appellant left her room and spent the night in her friend, Cpl EM’s, room. Cpl EM testified that the appellant was clearly upset and confided that she caught Cpl WP having sex with her roommate right after she had sex with him. Cpl EM also testified that the appellant said she “was going to do anything to ruin [Cpl WP’s] life.”

Slip op. at 3. A special court-martial composed of officer members convicted the appellant, contrary to her pleas of not guilty, of violating a lawful general order (wrongfully engaging in sexual activity in the barracks) and making a false official statement, in violation of Articles 92 and 107. The members sentenced the appellant to the jurisdictional maximum punishments of confinement for 12 months, reduction to E-1, forfeiture of $1,010.00 pay per month for 12 months, and a bad-conduct discharge. The convening authority approved only 120 days of the adjudged confinement.

Writing for the panel, Senior Judge Fischer finds that the members’ action excepted the element of an official statement from the false official statement charge, resulting in a finding of not guilty of that offense. As a result, the CCA approves only the finding of guilty of the orders violation, and it reduces the sentence to confinement for 30 days, forfeiture of $1,010.00 pay for one month, and reduction in rate to pay grade E-3 (and no punitive discharge).

11 Responses to “A false accusation of rape, but not a false official statement”

  1. Mr. X says:

    From the footnotes…”PFC RC testified that her corporal told her that since she [PFC RC] had been drinking prior Cpl WP engaging in sexual intercourse with her it was a sexual assault.”
    *sigh* 

  2. Peanut Gallery says:

    If the panel came to the ultimate conclusion that the exception resulted in a finding of NG to the charged offense, then wouldn’t [juris]prudence dictate that the CCA cannot conduct appellate review of that finding?  What am I missing?

  3. Zachary D Spilman says:

    The three-judge panel of the NMCCA set aside the finding of guilty of the 107 specification after concluding that the finding by exceptions eliminated an element of the offense (meaning that the appellant was acquitted of an element).

  4. stewie says:

    This is an example of a panel doing something whacky, ignorant of the ramifications of that action.  They clearly intended to convict, but ended up excepting away a required element.  Interesting, but I think the good news is both that such a prosecution happened and that the panel was willing to convict.

  5. Zeke says:

    The CCA’s actions in this case don’t necessarily bother me.  If the exceptions and substitutions resulted in a non-crime, then that conviction should be set aside and the sentence remaining should match the sort of punishment normally given for violating a no-sex order.  30 days jail, reduction, and partial forfeitures seems in line with that.  The questionable thing, to me, is the CCA approving the 107 conviction and yet finding that offense was only worth 120 days of the 12 months of adjudged confinement.  That’s hard to understand.
     

  6. k fischer says:

    Based on the panel’s actions, I agree with the decision, although I don’t know how such a statement was not “official.” So, does that mean Ms. Joseph is still in the Marine Corps and she gets her back pay as a Lance Corporal?  I think Marines should be advised to stay away from her, as she is a bit vindictive.

     
     

    That being said and I hate to be a victim blamer, but I don’t feel too very sorry for a guy who hooks up and showers with one female, then while she is on the phone with her mother, starts intercoursing with her roommate.  He had to know that wasn’t a good idea and that he would likely be falsely accused of some kind of crime.
     
    This adds another great tip on my running list of things not to do in order to avoid false rape allegations:
    1. Sleep with a married woman, i.e. be a Jody.
    2. Engage in a MMF menage.
    3. Engage in intercourse with a woman on the first date.
    4. Fail to call for a second date or call her the wrong name at the BX.  (If you fail to follow the rule above.)
    5.  Engage in intercourse with your GF’s roommate while your GF is on the phone in the next room right after you had a shower with your GF, unless it is prearranged between said roommate and your GF who states she will join in when she gets off the phone with her Mum.
    6.  Engage in intercourse with a woman who is repeatedly victimized by men through unfaithfulness, domestic violence, or sexual assault.  (Seems that Carlos and Kyle did her wrong, and Carlos’ clothes have the bleach stains to prove it.)

  7. DCGoneGalt says:

    k fischer:  Falsely accused?  Is it even there even such thing as a false accusation any more?  In the Orwellian world of politically correct language no matter how much evidence points to falsity the conclusion seems to be that there is simply insufficient evidence to prove that it is true. 

    There is no evidence to support claims in a Rolling Stone article that a University of Virginia student was gang-raped at a campus fraternity in September 2012, police said, noting that a five-month investigation led detectives to discredit numerous claims about the alleged assault.

     

    “We’re not able to conclude to any substantive degree that an incident occurred at the Phi Kappa Psi fraternity house or any other fraternity house, for that matter,” Longo said at a news conference. “That doesn’t mean something terrible didn’t happen to Jackie. . . . We’re just not able to gather sufficient facts to determine what that is.”

    http://my.chicagotribune.com/#section/-1/article/p2p-83127452/
     
    Maybe this is just a game to avoid reaching the 2% ceiling but if there is no evidence that the alleged act occured and overwhelming evidence that the alleged act didn’t occur then that would make the allegation . . .
    A Rolling Stone gathers no facts.
     
     

  8. k fischer says:

    Galt, 
     
    Frankly, I am impressed by the Marine CID office who investigated this case and the trial counsel who prosecuted her.  I think in other jurisdictions, MP would have been on trial for two specs of rape.  
     
    Also, I don’t see how the statement she made couldn’t have been official, since she stated that it was “her duty” to report a sexual assault, although it sounds like she was referencing the sexual act with her roommate.  And, did she make a sworn statement?  Because that would have been a false swearing. Anybody know whether or not she swore out a statement on her “rape.”
     
    Finally, why is it a crime for unmarried Marines to have sex in the barracks?  Perhaps to discourage false rape allegations?
     
    The UVA issue is quite troubling.  Seems like lately the usual gang of rape hysteria advocates are pushing their agenda based on really bad facts.  And now they have “The Hunting Ground,” which is the college version of “The Invisible War.”  Sounds like a push to get future civilian jurors educated on how to check their common sense at the door for when they sit on a sexual assault case.
     
    I noticed the military got $257 million to combat sexual assault.  That’s a lot of taxpayers dollars to hire experts to train future panel members on rape myth myths and counterintuitive victim behavior.  This is turning into a big business when you can become a paid expert and be paid by the Government to train and testify.  I’m wondering when society will turn the corner and recognize they are being duped.

  9. Zeke says:

    k fischer said:

    Sounds like a push to get future civilian jurors educated on how to check their common sense at the door for when they sit on a sexual assault case.

    Convincing the public, through free and open discourse, that a certain kind of doubt is not truly “reasonable doubt” does not bother me.  In my mind, the problem with shaping juror opinion by propaganda comes when that propaganda is blasted at a population that may not feel free to disagree – like the military population.  I don’t care if we launch “public interest” campaigns to try and convince the civilian population (and by extension, though not directly, the military population) to “believe the victim.”  I only care when that propaganda is directed towards the military population, which is indoctrinated to follow orders and meet mission demands, and may perceive such propaganda in that light.  It’s then, I think, that the propaganda ceases to be merely the expression of an idea in a free society, and instead starts to look like institutionalized jury tampering.
     

  10. RKincaid3 (RK3PO) says:

    At DCGG:  I love the phrase “A Rolling Stone Gathers No Facts.”  Thanks for the chuckle!
     
    At Zeke:  Yes, UCI is running amok…and too few are willing to say or do anything about it because that same UCI implies strongly that honest criticism of the chain of command may not be well received.  Whether that implication is real or not, it is an apparenty reality–especially on this site where so many professionals–experts in their craft–use pseudonyms.
     
    The message that leads people to believe that anonymous criticism is worthwhile criticisem is truly troublesome on oh-so-many levels.  Especially on the leadership level.   If our leaders want to lead, they should go out of their way to ensure that professionals with something to say don’t believe that there is danger in honesty.
     
    But I am glad this case was prosecuted–and I am sure that it is just a matter of time before Congress finds out that a “victim” was prosecuted–for shame!

  11. k fischer says:

    Zeke,
     
    I would hardly characterize the efforts of Gillibrand, McCaskill, and the Administration through the “Dear Colleague” letter and investigations under Title IX of our Universities for their prosecution of sexual assault as “free and open discourse.”. I’m less concerned than you about the military as I am not subject to the UCMJ.  But when our civilian law enforcement begin to appear to be taking the same route to obtaining convictions, then I get a little more concerned.  Trust me, they start with the military as a test run, then they move into academia, then they take it to your hometown where it becomes jury tampering on a national level.  Then again, I could be a paranoid nut.  Sorry, gotta read Zach’s latest post about the SVC telling her client to destroy evidence.