In United States v. Pease, __ M.J. __, No. 201400165 (N-M. Ct. Crim. App. Jul. 14, 2015), the Navy-Marine Corps CCA reversed convictions for sexual assault and abusive sexual contact after finding that the Government failed to prove that the intoxicated victims were incapable of consenting and that the appellant knew or reasonably should have known that they were incapable of consenting. I discussed the CCA’s decision in this post.

The Judge Advocate General of the Navy just certified the case to CAAF:

No. 16-0014/NA. U.S. v. Jacob L. Pease. CCA 201400165.  Notice is hereby given that a certificate of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

THE LOWER COURT JUDICIALLY DEFINED “INCAPABLE OF CONSENTING” CONTRARY TO THE INSTRUCTIONS GIVEN TO THE MEMBERS AND USED THIS DEFINITION TO FIND THREE CHARGES OF SEXUAL ASSAULT AND ONE CHARGE OF ABUSIVE SEXUAL CONTACT FACTUALLY INSUFFICIENT. IN CREATING THIS NEW LEGAL DEFINITION NOT CONSIDERED BY THE FACTFINDER AND NOWHERE PRESENT IN THE RECORD, DID THE LOWER COURT CONSIDER MATTERS OUTSIDE THE RECORD AND OUTSIDE ITS STATUTORY AUTHORITY IN CONDUCTING ITS FACTUAL SUFFICIENCY REVIEW?

THE LOWER COURT JUDICIALLY DEFINED “INCAPABLE OF CONSENTING” IN A MANNER THAT LIMITS PROSECUTIONS TO ONLY TWO SITUATIONS – -“INABILITY TO APPRECIATE” AND “INABILITY TO MAKE AND COMMUNICATE” AN AGREEMENT. TO PROVE THE LATTER, THE COURT FURTHER REQUIRED PROOF THAT A VICTIM BE UNABLE BOTH TO MAKE AND TO COMMUNICATE A DECISION TO ENGAGE IN THE CONDUCT AT ISSUE. NOTHING IN THE STATUTE REFLECTS CONGRESSIONAL INTENT TO LIMIT ARTICLE 120, UCMJ, PROSECUTIONS IN THIS MANNER. DID THE LOWER COURT ERR?

47 Responses to “Navy JAG certifies Pease”

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

    The way they phrased these issues, Navy GAD kind of set themselves up for failure.  The NMCCA is clear it exercised its factual sufficiency powers in making its decision.  If they had phrased it more as NMCCA erred as a matter of law in the way it exercised its factual sufficiency powers, then you’d have something.  Would’ve been helpful for NMCCA to cite to U.S. v. Long from ACCA, but there is precedent for the definition NMCCA provided of “incapacity.”  We actually already have a definition of “incapacity” as well–the insanity defense.
     
    Capacity to consent = can appreciate the nature of the sexual act/contact at issue + (physical ability + mental ability) to make a decision about that activity + (physical ability + mental ability) to communicate that decision to the other person.  If you are missing any ONE of these “elements” of capacity, then that person is “incapable” of consenting, ergo sexual assault.
     
    The problem is that people investigating, prosecuting, or judging (mostly panel members) these cases are substituting their own personal opinions and their own morals.  Are you morally culpable if you have sex with someone who is really drunk?  Yes, Pease was a jerk and deserves to be dinged on a fitness report for “taking advantage of” at least of IT2 BS.  And starting off with anal just really isn’t a good idea.  But moral culpability does not translate into legal criminal liability.  Everyone in SA cases needs to understand the difference.  This confusion is what is leading to prosecuting unwinnable cases, which then of course lead to acquittals.
     
    When I first read the opinion, I thought to myself that, if I was a panel member, I would have voted to convict Pease on SA w/ IT2 BS–throwing up on the bed, getting into the shower to clean up, and Pease banging on the bathroom floor when she’s laying on the bathroom floor naked is “too drunk” to me.  BUT then reading where she remembers some sexual activity where she is in a position of control (oral sex on him, and on top of him during vaginal), doggie-style that she supported herself, and she ENJOYED some of it, and some activity she didn’t like so she said STOP and he did in fact STOP, and not until the next day and after talking to the other complainant that she didn’t like it, I thought to myself that, if I was a panel member, I would be wondering what she wants me to do about that?  Since she was capable of saying no to stuff she didn’t like, she was capable of saying no to the other stuff, if she didn’t want to do it.

  2. RY says:

    IMO, the first issue statement is laughably terrible.  If the issue is whether the CCA got the law right, then the issue is simply whether the lower court erred in its interpretation of the law (which is basically the second issue statement).  The first issue, however, assumes appellate courts are somehow bound by the law as interpreted and instructed by the judge.  Factual sufficiency is application of the facts on the record to the law; it doesn’t matter what the trial judge instructed…if there was error in the instructions that would be a separate issue with a separate prejudice test depending on whether the error was in required instructions.  The law is de novo review and higher courts trump lower courts; this is pre-law 101.  Taken to its conclusion, the first certified issue would require convictions to be affirmed whenever a trial judge goofed on the law to the disadvantage of an accused solely because that’s what was instructed.  Moreover it misses the point entirely that the CCA has its own factual review.  
     
    The second issue statement touches upon an issue I raised a few years ago in trial courts but has yet to be addressed fully on appeal yet.  Art 120 was revised to be modeled after federal and state statutes.  Those jurisdictions are divided on what exactly constitutes the capacity to consent – is it enough that the alleged victim is aware that he/she is engaging in sexual acts or must he/she have sufficient capacity to understand the consequences of such acts, e.g., that there could be pregnancy, STDs, etc.  Legal incapacity, for example, appears to require the latter…it is not enough that the client understands he/she is sitting in court if he/she doesn’t appreciate or understand the consequences of that.  If I recall correctly, a few courts found it to be a constitutional matter.  When I raised the issue, the trial judges did what they always do…dodge the issue and say the statute is sufficiently clear, which it is not, because cases continue to be upheld without clarification.    In any event, I think the second issue is valid and I think the ACCA is spot on with its analysis.  
     

  3. Concerned defender says:

    Women demand equal rights, equal treatment, equal pay, access to all MOS fields, combat rolls, schools.  
    Yet the law views women as incompetent dear-in-the-headlights when it comes to alcohol and sex.  If a person drinks and drives she/he is liable for his choices.  When a man drinks and has sex, he is liable for his actions, even if deemed he later had sex with a drunk woman.  But magically women are immune for any bad decisions they make when they drink and have sex.  Somehow they become inept, incapable, unequal, victims unable to resist, say no, call for help, etc. 
    The application of the law is a clear violation of equal protection and due process, and a sham that will destroy the military if left unchecked.  Quite chilling to be a man in the modern military when an allegation can ruin your life…
    Sad that it takes an appeal for any relief… 

  4. DCGoneGalt says:

    I couldn’t resist:  This is a fluid area of the law and it will be interesting how the court decides this case in light of the recent discovery by noted Constitutional scholar Hillary Clinton of a sexual assault complainant’s “right to be believed”.
    http://www.dailymail.co.uk/news/article-3234774/Hillary-Clinton-says-female-sexual-assault-accusers-right-believed-skips-accused-child-rapist-defended-1970s-Bill-s-bimbo-eruptions.html

  5. Gabriel Bradley says:

    According to CAAF’s rules, issue statements “should be short and should not be argumentative or repetitive.” The issue statements in this case are not just argumentative, they are bombastic to the point that they undermine credibility. I would caution a defense attorney against taking such tack, and I would expect the Government to already know better.
    Also, even though these statements are drafted by GAD, they are certified by the Judge Advocate General. Does anyone else think it creates a minor image problem for the same person who exercises unfettered discretion over the appointment of NMCCA judges to be so stridently criticizing a specific ruling by that NMCCA?

  6. Scott says:

    It will be nice for us non Navy / Marine types to get a CAAF opinion on this issue. 

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

    The issues as written are very emotional, which is a big problem.  Government counsel should NEVER get emotional or emotionally attached to their cases.  Especially when they lose.
     
    I defended a rape case in Korea where the Government’s theory was the alleged victim was mentally incompetent, they tried to make her out to be a female Forrest Gump.  Our expert forensic psychiatrist explained competence very similarily to what NMCCA and ACCA came up with.  Mental competence = ability to understand the nature of the sex act at issue + ability to understand the consequences of that act.
     
    Considering that this so-called victim admitted the purpose of her trip from Yongsan to Camp Humphries was the for EXPRESS PURPOSE of having sex with our client, and her intention was to get pregnant so that her overbearing mother would have to treat her as an adult instead of a child, she had had a sexual relationship with a previous boyfriend.  AND we got her mental health records and talked to her shrink, who admitted the “mental disorder” she was diagnosed with wasn’t because she actually had the disorder, it was to “help her” continue to be a dependent, because she was 22 and not in college, so unless she was diagnosed as “mentally incompetent” she would no longer be a dependent, and the family would be on the hook for her expensive medicine, medical care, and pay for her return to the US when the family PCSed.  Nothing like a little Tricare fraud and cathcing the mom in an outright lie on the stand to add something to the case.  Client found NOT GUILTY of rape and forcible sodomy.
     
    It’s all about the ability to make a decision, period.  Not whether it was a “good decision.”  No one makes good decisions when they’re drunk.  Common sense.
     
    The standard that ACCA and NMCCA came up with is a good objective standard.  Majority of agents investigating these cases are also struggling to define what “too drunk” looks like.  This will help.  The Peaser case also helps identify specific facts that show what “not too drunk” looks like.

  8. DCGoneGalt says:

    Tami:  I also like the ACCA and NMCCA standard and think it’s about as good as it’s gonna get as for clarification. However, I would prefer to have sentient beings in Congress and the Executive branch who could pass and sign a law that contains a standard instead of passing a new illogical and progressively dumber monstrosity of a reform package in the NDAA every few years that has to be “interpreted” by the courts.

  9. Zachary D Spilman says:

    There are two serious problems with the certified issues.

    First, the NMCCA did not judicially define the term incapable of consenting. Rather, the CCA interpreted the term in its statutory context – exactly what courts are supposed to do:

    The short answer is our interpretation of the law applied to our assessment of the facts in this case leaves us with reasonable doubt that the complainants were legally “incapable of consenting” as well as reasonable doubt that the appellant knew or reasonably should have known they were incapable of consenting. 

    Pease, __ M.J. at __, slip op. at 12. Of note, “it is emphatically the duty of the Judicial Department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 179 (1803). And, of course, interpreting the UCMJ “is an issue of statutory interpretation, which we review de novo.” United States v. McPherson, 73 M.J. 393, 395 (C.A.A.F. 2014) (quoting United States v. Wise, 64 M.J. 468, 473 (C.A.A.F. 2007).

    So far as the JAG believes that the NMCCA defined a statutory term contrary to the instructions given to the members, a de novo standard of review means that if the CCA’s interpretation is accurate then the instruction to the members was the error.

    Second, in attacking the CCA’s interpretation, the second certified issues states:

    NOTHING IN THE STATUTE REFLECTS CONGRESSIONAL INTENT TO LIMIT ARTICLE 120, UCMJ, PROSECUTIONS IN THIS MANNER.

    However, it is a basic principle of statutory construction that if the plain meaning of the statute is unambiguous then there is no need to resort to divination of intent:

    But, in a search for meaning, we need look no further than the words of the statute itself. See United States v. Ron Pair Enters., 489 U.S. 235, 240-41 (1989) (“as long as the statutory scheme is coherent and consistent, there generally is no need for a court to inquire beyond the plain language of the statute”).

    Pease, __ M.J. at __, slip op. at 12. CAAF recently reiterated this principle as well:

    As in all statutory construction cases, we begin with the language of the statute. The first step is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. The inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent.

    United States v. McPherson, 73 M.J. 393, 395 (C.A.A.F. 2014) (quoting Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450 (2002)).

    Presumably the language of the certified issues tracks the Government’s argument. Accordingly, I think there’s a good chance that CAAF will summarily affirm the CCA’s decision.

    Alternatively, maybe the Government will argue that the Article 120 scheme is neither coherent nor consistent. That argument might just work.
    z

  10. LLOD says:

    While I think these decisions are better than nothing, the reality is that “incapable of consenting due to impairment” is an unconstitutionally vague standard that invites police, prosecutors, and members to insert their own value judgments into the process. The CCAs are taking half measures. The right call is to hold that it is unconstitutionally vague and punt it back to Congress to do it right.

  11. Alfonso Decimo says:

    I imagine there was some debate between those who advise the DON’s (Navy-Marine Corps) Military Justice AJAG before this was certified to CAAF. The language in these issue statements indicates the AJAG listened to the wrong advice. Those who have been struggling to increase military justice expertise at the trial level need to also focus on expertise at the headquarters level. Eventually, the JAGs need to benefit from the advice of grey-haired civilian attorneys who don’t rotate every few years. In the DON, that has been the plan for a decade, but like the plan to increase trial level expertise, it still hasn’t fully happened.

  12. Vulture says:

    Back in the eighties the buzz word was “litmus test” for Reagan’s appointments to the Supreme Court.  I wonder if we are going to hear the same thing for the upcoming confirmation to CAAF.

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

    @LLOD,
     
    You are absolutely correct–agents are using their own ideas of what “too drunk” is.  There was a sexual assault case at Fort Leonard Wood last week that resulted in a complete acquittal.  Part of the problem is that CID advised the accused that “she can’t consent if she has booze on her breath,” and “if you’re too drunk to get a tattoo, you can’t consent to sex,” and “you violated SHARP policy by having sex with someone who drank alcohol.”  I still hear from others that SHARP is still preaching “one drink and SHE can’t consent.”  Why is it always SHE?
     
    Would be helpful to provide specific examples to show what “too drunk” looks like, but that would lead to Congress using their own values.  As we all know, it’s going to end up being very subjective.  And they will never ever provide examples of what the standards should not be, because that would be telling “offenders” how to avoid getting caught.
     
    It’s become like porn, “I know it when I see it.”  Only in SA cases, no one sees it (unless it’s recorded).
     
    Question for everyone:  Is it “wrongful” recording if the only purpose for recording the sex is to protect yourself from a later false accusation of sexual assault?

  14. DCGoneGalt says:

    Tami:  I would say yes if the video recording captures the private areas of the body.   IMO, Art 120c doesn’t seem to leave a carve out for “protecting yourself” constitutes lawful justification.  Any civilians aware of federal case law that would speak to this on similar issues?  However, on federal jurisdiction you could audio record the sex without the consent of the other party with no issues.  And, as a defense counsel, I know someone who did since they didn’t trust the military and just couldn’t give up bars and hookups, all of which were IMO clearly consensual, not that it matters anymore) no matter the danger of knowing the potential for having their life ruined for doing nothing, legally, wrong.

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

    Maybe position the camera so that you only get a head shot then.  But then what if you live in a 2 party consent jurisdiction?  Do you put a sign above your bedroom door saying entrance equals consent to monitoring?  Or suject to monitoring? I’m actually being serious, this seems to be the only way for sexual assault cases to be investigated and prosecuted.

  16. RKincaid3 (RK3PO) says:

    Excellent decision—and the entire Art 120 needs stricken by the courts and returned to Congress for a do-over.  And, given their utter and complete inability to govern the nation like professionals, the military can focus on fighting wars, killing people and breaking things instead of all this silly social engineering for a petty political side-show cause. 
     
    Sigh…first we have a the double-burden shift, now apparently Hillary believes that there is a “right to be believed” that is weighted the same as the “presumption of innocence.”  What is next, a new 120 amendment for “ogling” that will carry a sex offender registration requirement?

  17. DcGoneGalt says:

    Tami:  I think audio recording is a good idea for anyone engaging in bar hookups (or better yet, avoiding hookups).  I would think the two party state recording would be a step too far but the audio recording has a less “icky” factor than a video recording.  For the video, I  know several commanders who would have prosecuted for the video recording even if it was turned over in order to disprove a sexual assault allegation.  Because the legal office and commanders took the Catch-22 position when an allegation came in:  he’s guilty, we just need to find something to charge him with.  

  18. Alfonso Decimo says:

    DCGone – I disagree in that silent video surveillance would not violate the Wiretap Act or any state equivalent, so the position of the camera would not matter and the audio recording of the coversation is the concern. 

  19. DCGoneGalt says:

    Alfonso:  Admittedly, I am not an expert on wiretapping law, but with federal one-party consent rules, how would an audio recording be a violation?  It is not being done for criminal purposes.  A visual recording would run afoul of Art 120c but if someone wants to record what is said in their home I am not sure how that is prohibited.

  20. Alfonso Decimo says:

    You’re correct that under 18 U.S.C.A. § 2511, it is not unlawful to intercept (record) a conversation, w/o the consent of the other party, if you are a party to that conversation. However, it would violate the law in many states, while a video recording would not, unless it was indecent. So, a strategically-placed video recorder would be lawful in all states and could produce admissible evidence for the defense, but any surreptitious audio recording would be unlawful and inadmissible (in some states). 

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

    @Alfonso Decimo,
     
    Actually, the majority of states also permit one-party consent of recording.  And in areas where both federal and state law apply, federal law trumps state law.  Even in states where two-party (or all-party) consent is required, potentially if you put a sign above your bedroom door, or front door of your house/apartment, with something like “by entering through this door you are consenting to video and/or audio recording.”

  22. Alfonso Decimo says:

    Tami – Thanks. I didn’t know it was the majority of states. I have a new wrinkle to add to your preventative-law lecture to the troops. I would have the client point towards the sign during the recording and say, “did you see the notice on the door on your way into the building/apartment/bedroom?” Or, the sign could be prominently displayed on the wall across from the camera. Otherwise, I am not sure how the defense can prove the sign was present and obvious at the relevant time. Actually, some entrepreneur should market posters that read as you describe above and sell them in the military exchanges and college bookstores. It might be bigger than, “shit happens!”

  23. Phil Cave says:

    Without being too detailed.  I have a case where the silent video is the subject of multiple specifications, partly because the other person didn’t consent.  And in the state it is a misdemeanor.  Motive is irrelevant.

  24. k fischer says:

    Alfie D,
     
    A silent video surveillance would still violate Article 125 if it showed her private area.
     
    Audio recording would only be a wiretape violation if the State was a two party consent state.  Could the TC assimilate state law if the recording occurred on a federal military reservation in a two party consent state like Florida?
     
    I recently had a case where my client surreptitiously recorded the arguments he had with his wife who tried to run him down with the car, threw a glass that hit him in the shoulder then shattered, threatened to kill his dog, and threatened to go to FAP and lie to them.  She accused him of anal rape, vaginal rape, choking her, fingering her without consent, and punching her in the face. He wasn’t able to record in Florida because it is a two party consent state.  The Government tried like hell to keep the recordings out, and the MJ was going to keep the recordings out.  The panel president asked to hear the recordings when my client testified that he made the recordings.  They got to hear what she was really like and fully acquitted my client. 
     
    As far as preventative law goes, you can add these tips:
     
    I highly recommend to my clients who don’t practice abstinence that they only engage in intercourse in one party consent states and make an audio recording of every sexual encounter.  They can download a voice recorder app on your smart phone for free.  They need to talk very clearly and if the phone is in a cargo pocket, stop walking or moving when they speak.  Pocket scratch noise really makes it difficult to hear, and the MJ gets really frustrated.   They could keep their phone on a bedside nightstand and ask if the other party “likes it” and “what would you like me to do next” and “how does that feel”  and in the post coital bliss discuss what each other’s favorite body parts are, things they could improve upon, favorite sexual positions to try the next time, would it be okay if they called each other the next morning or that evening (for instance, a good line would be “I really like you and I don’t want to wait three days to call you like Vince Vaughn recommended in Swingers.  I’d like to call you tonight.”), discuss how much they had to drink, discuss extraordinary things that occurred during intercourse like “that was awesome when you made dolphin sounds, put both of your legs behind your head, meowed like a cat, so, do you normally get aroused when you are on your cycle, it’s good that your mattress is wrapped in plastic because these sheets are soaking wet” etc.  Preferably they should spoon so their mouths are pointed at the cell phone to pick up the best audio.

  25. Alfonso Decimo says:

    KingFish – Yep. I wrote, “unless it was indecent”. Sadly, no amount of preventative measures will guarantee one’s safety from sociopaths. – Alfie

  26. PaulJ says:

    I always like reading the comments on CAAFlog. You all make me smarter. So, I’d like to get some thoughts on this…
    There have been a few comments above about the 1-sided nature of the “incapable of consenting” issue. It certainly seems that, as applied, only females become “incapable of consenting” when alcohol is present. But, in so many of our cases, BOTH parties have consumed alcohol – often, large quantities. I’m sure that all of us that have done defense have had clients that also had a tough time remembering the details of the encounter as a result of their own alcohol consumption. So, I wonder what might happen if, when these always-male clients first come into our office – sometimes in the very early stages of the investigation – we immediately assisted them in filing their own unrestricted reports. Certainly, under the vague standards that we’re currently using, if a person doesn’t remember the details of the encounter, a sexual assault has occurred. Constitutionally, it cannot matter whether that person is male or female. And I haven’t seen anything in the DoD or DON policies that would preclude someone from making such a report just because they’re the subject of an investigation based upon another report.
    I guess I’m just curious as to how that might gunk-up (yes, that’s a technical legal term) the process.

  27. k fischer says:

    Indeed you did, good Sir!  I stand humbly and appreciatively corrected. 
     
    And, “Alfie D” does not have the same ring that “Billy C” (for B Cassara) has.  How about ” ‘Fonzie D?”  That’s way more solid. 

  28. Ed says:

    K Fisher
    How romantic.

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

    @K Fischer,
     
    If the area is under “concurrent jurisdiction” I think the TC could NOT assimilate state law in an all-party consent state b/c federal law specifically states one-party consent is all that’s needed, and federal law trumps state law.  So the only way a TC could prosecute for a violation of state law is if the recording occurred in an area of proprietary jurisdiction on a military installation.  As far as the Army goes, the only place I’m aware of for proprietary jurisdiction is some small spot in the middle of nowhere on Fort Hood, TX.
     
    Fort Leonard Wood is all exclusive federal jurisdiction.
     
    Also, the TC can’t create an Article 134 offense for recording ANYTHING when one-party consent applies.  I had a client at Fort Carson facing a company grade article 15 for being friends with a married woman (yes I know, and it was BS and I advised client to turn it down and demand trial by court-martial), and his company commander was being a jerk about it.  He asked if he could legally secretly record his conversations w/ the company commander, which the answer was yes.  Next thing I know TC is trying to add another charge to Article 15 for the recording under Article 134 and disobeying an order, based on him informing the company commander and 1SG he was recording their conversation (which the CO WAS being a jerk and trying to convince client to take the Article 15), and when the CO ordered him to cease recording (which client refused to do), CO ordered the 1SG to take the recorder from him, and you could hear on the recording the scuffle and the recording ended.  Long story short, I told the TC client would turn that down too and demand court-martial, and if he wanted to go into court with the commander trying to exercise unlawful influence re:  the original Article 15, lack of any notice that it’s a crime for a man to be friends with a woman, CO giving an unlawful order to cease recording when federal law specifically permits it, and you can’t criminalize something federal law specifically permits, AND the CO is on record as ordering an assault on my client and the 1SG committed an assault on my client, then fine by me.
     
    http://www.detectiveservices.com/2012/02/27/state-by-state-recording-laws/

  30. k fischer says:

    Good analysis, your Highness.
     
    Ed, thanks. But if that wasn’t sarcasm, then I don’t think that word means what you think it means.  In today’s military, the question “Did you have protection?” is not limited to asking if he wore a condom during sex. 

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

    Wow, that got out of hand really quickly!  I should find a safe house or a nearby relative and lay low for a little while, because I’m probably wanted for saying politically incorrect and unpopular things.

  32. Phil Cave says:

    PaulJ.
    Good theory.  Been tried.  Problem is your client is a man.  
    There does appear to be some movement in the Title X area where people are recognizating gender discrimination and it’s coming up in Male lawsuits against colleges for even worse railroading.
    So, until your client gets another body it is highly unlikely you would succeed.  But I think it’s the right idea.

  33. Concerned defender says:

    I like the idea of surreptitious recording, however you can still lose in spite of having the smoking gun evidence.  True story:  I have perhaps 1 devastating loss in my career, one that still haunts me every day, for which I cannot explain.  I was co-counsel and I am 100% sure my client was wrongly convicted of 120 and got 5 years in confinement and a BCD.  Long story short, there were 3 females (ringleader, participant, and manipulated complainer), and 2 Soldiers client and co-accused.  
    Leading up to the infamous night, ringleader female had a sexual relationship with client.  Then he called it off, upsetting her.  Later, there was a barracks party where client and co-accused hosted the party and the 3 women came; the 2 guys were flirtatious with the two females participant and manipulated complainer.   These 4 sober enough individuals went to the bedroom and engaged in consensual orgy activity.  By all accounts, ringleader is fuming mad.  When they all return to the party, ringleader takes manipulated complainer to the bathroom and browbeats her that she was raped, in spite of the latter’s denials.  
    The party clears when this allegation starts floating around.  So, co-accused secretly sets his phone on record and places it on the table surreptitiously, recording over 20 minutes of ringleader browbeating manipulated complainer that she was raped, and she was arguing she was not, and both women clearly say that everything that happened was consensual.  Yet manipulated complainer ends up in the ER with some pains from rough sex, and is convinced she was raped (12-36 hours later).  
    Here are direct quotes from the actual audio, which as far as the women know was just a conversation where the ringleader was trying to pressure the others.  I just looked at my notes and copied them here. 
    “I didn’t get raped either, it was fun.”  – manipulated complainer
    (3 minute mark) “The only thing that matters is what I say, and I say I wasn’t raped.”  – manipulated complainer
    “I could screw you up so bad, even if I didn’t have enough shit on you to get you in trouble legally I could still get you fired.”  – ringleader statement to my client, showing motive, and she made many statements like this
    “I was in the room and there was nothing forceful or foul play…everything was legit.” – participant
    “She’s jealous and mad because she didn’t get none.”  – manipulated complainer
    (Says it a second time at 18 minute mark):  “The only thing that matters is what I say, and I say I wasn’t raped.”  – manipulated complainer
    “Nothing bad happened tonight.”  – manipulated complainer
    Neither men said a single incriminating thing harmful to their case.  
    This somehow survives an Article 32, survives all motions, and ends up a GCM.  We put on a strong defense, and the star witness was the audio recording where the manipulated complainer says multiple times that it was consensual.  Slam dunk acquittal, right? 
     
    Sadly, no.  I’m haunted and troubled to this day of the result.  All appeals have lost as well.  I have no professional explanation.  I don’t know how intelligent adults can listen to that audio and not acquit.  Well, actually I do have an explanation.  It bluntly boils down to clear UCI, cowards in uniform who want to please the General, and the very low threshold for criminal convictions.  We had a bad draw on the panel, and the Judge refused to strike a former sex assault nurser for cause (and we used our peremptory challenge on an even worse panel member). 
    Oh, and if you’re wondering, the co-accused trial was bifurcated the next day, and he was effectively acquitted of all the same and actually worse allegations (he also did anal on the manipulated complainer, which is what sent her to the ER due to the pain).  I think he did get a minimal conviction on indecent acts or something such, and punishment was extremely light with no discharge (like loss of 1 rank, and some minor stuff).  His audio saved his skin.  
    My only consolation is that woman will have to answer to her maker for ruining my client’s life, which she did.  5 years in prison, BCD, sex offender for life.  
    The MJ system is so, so badly broken when stuff like this happens.  I nearly stopped practicing law after this tragic injustice.  I’m still quite troubled over it.
     
     

  34. k fischer says:

    PaulJ,
     
    In order for a man to do that he would have to lack reason and accountability.  Also, I guarantee the Government would use that as consciousness of guilt evidence.  He went down and reported he was raped because he knew in fact that she was too drunk to consent!!!!
     
    CD,  keep up the good fight.  The system isn’t perfect, and it isn’t your fault.  Move to the Government side and make good decisions for actual victims me.
     

  35. k fischer says:

    One thing I have been encountering is alleged vics going to Family Advocacy and filing a restricted complaint.  Many of the people who work there fancy themselves as paralawyers and they send the case to CID.  The Accused makes an unwarned statement as well, which is admissible because FAP is not law enforcement.  Many times the accused will explain that his wife is the abuser and bring forth evidence that corroborates his statement, but FAP doesn’t want to hear it.  they are in the business of protecting women, pure and simple.
     
    What is most troubling is that the FAP regulations create a database which can be searched to determine whether Soldiers are fit to be recruiters, drill sergeants, or placed in other areas of trust.  So, a wife might think that making a false report of domestic or sexual violence to FAP to keep her husband from divorcing her is no big deal, but it is a big freaking deal, and unfortunately I seriously doubt that FAP receives any training to protect the falsely accused from accusations because if there isn’t enough domestic violence on their particular post, then they don’t have jobs.

  36. Dew_Process says:

    The accusation that commanders do not take these cases seriously is completely unfounded. The truth is quite the opposite; commanders feel hamstrung to prosecute sexual assaults to the fullest, regardless of the possibility of success at trial. Political pressure from victims’ rights groups have created an environment in which Servicemembers are no longer presumed innocent until proven guilty beyond a reasonable doubt, which is a constitutional travesty. Public complaints that the military does not take sexual assault seriously have prompted overprosecution in cases that would likely not go to trial in the civilian world. This creates a vicious cycle of acquittals in the court-martial system, continuing to compound an optics problem in the military.

     
    Good read from the JFQ available HERE.
     

  37. Dew_Process says:

    Even better read by COL (ret) Lisa Schenk HERE.

  38. stewie says:

    COL(R) Schenk’s article is so dead-on it could bulls-eye a womp rat (or a thermal exhaust port right below the main port on a Death Star).

  39. Alfonso Decimo says:

    Lindsay Rodman’s article, Fostering Constructive Dialogue, is also great and in a similar vein.

  40. Bill Cassara says:

    K Fisher: Whatever happened to a Smoky Robinson album and a couple of glasses of wine?

  41. k fischer says:

    Bill,
     
    According to AR 27-69, you can still listen to Smoky before, but no wine may be consumed before, and you have to turn him off afterwards because it might interfere with the audio……
     

  42. Mitch McDeere says:

    DP,
     
    As to your quote from Rodman’s article: 

    The accusation that commanders do not take these cases seriously is completely unfounded. The truth is quite the opposite; commanders feel hamstrung to prosecute sexual assaults to the fullest, regardless of the possibility of success at trial. Political pressure from victims’ rights groups have created an environment in which Servicemembers are no longer presumed innocent until proven guilty beyond a reasonable doubt, which is a constitutional travesty. Public complaints that the military does not take sexual assault seriously have prompted overprosecution in cases that would likely not go to trial in the civilian world. This creates a vicious cycle of acquittals in the court-martial system, continuing to compound an optics problem in the military.
     

    Right now there is an NCO facing a court-martial with an Article 120 offense for placing his hand on a Specialist’s pregnant stomach while stating, “I could be your Daddy if your Mommy wants me to” while she was at his house.  If convicted, he will have to register as a sex offender.  It is difficult to believe that the GCMCA who referred this charge and specification to trial, the SJA, or the TC takes sexual assault allegations seriously.  The unwarranted expansion of Article 120 in this case to criminalize, at most, simple batteries as sexual offenses requiring sex offender registration focuses entirely on the letter of the law and shows a complete ignorance for the spirit of the law.  In this particular case, it seems that the pendulum has swung so far that it has broken off its point of suspension, landed on, and crushed a Servicemember’s right to due process, which includes the right not to face baseless charges.
     
    These actions do not evidence the SJA and Commander taking sexual assaults seriously; rather, they evidence the danger of a system where an actual sexual assault is marginalized by construing all conduct into sexual assault in order to reach a desired end state.  I would hope that this is not endemic, but rather an isolated case.  
     
    One way to combat this approach and put the pendulum back onto the point of suspension is to fight cases like this one, then build up a stable of victimized accused who can go to Congress in the power of a group and state how they were victimized.  These cases should be post-2010 when many of the changes to sexual assault prosecution began. 
     
    What would help is a courageous disenchanted Government counsel (SVP, TC, or SJA) to testify about any questionable tactics, if any, they might have been trained to use or actually employed during a trial. But, that would be career suicide if they, in fact, exist. 

  43. Ed says:

    Mitch McDeere You could start the courageous trend by identifying the CA and without naming the parties the exact facts. Based upon what you said I would be glad to complain to Congress.

  44. Mitch McDeere says:

    MG Austin Miller, Ft Benning.  Three NCOs who work in the chow hall are being prosecuted after information was disclosed in a sensing session.  One NCO invited a SPC to his home where she stayed for three hours and he rubbed her pregnant stomach and said, “I’ll be your Daddy if your Mommy lets me.”  This horrific assault went unreported until it was disclosed at the session months later.  He also allegedly said some things about other people, male and female, for which he is being charged with cruelty and maltreatment under Article 93.  In one specification, he allegedly told another male he was “vagina” whipped.  He also allegedly told a female she was thick for a white girl and asked if she liked black penis.  Complain away, but I’m not going to lose my job.  I’m not that courageous.

  45. k fischer says:

    Speaking of recording, here is one Ranger fighting back
     
    When my Ranger client in a very similar situation was first read his rights after he was accused of sexually assaulting his wife the day after he filed for divorce, I advised him that when he exercised visitation with his 1 year old daughter that he needed to wear a gopro and record every second of his visitation because I feared that she would hurt the child when he returned the child, then blame it on him.  When we got the sworn statements, there was some hinting about child molestation, but the child was too young to be coached, which is why wife had to be the victim.  There was never any mention of my client abusing the child again because both mother in law and wife knew that he had every second recorded.
     
    Recording is the best strategy in order to convince the factfinder of who the victim is.

  46. Concerned defender says:

    One NCO invited a SPC to his home where she stayed for three hours and he rubbed her pregnant stomach and said, “I’ll be your Daddy if your Mommy lets me.”  This horrific assault went unreported until it was disclosed at the session months later.  He also allegedly said some things about other people, male and female, for which he is being charged with cruelty and maltreatment under Article 93.  In one specification, he allegedly told another male he was “vagina” whipped.  He also allegedly told a female she was thick for a white girl and asked if she liked black penis. 

    Oh the HORROR!   While I don’t condone the lack of leadership, class, gentlemanly behavior, the mere idea that we live in such a sheltered PC society that any of this amounts to the level of a Federal Conviction, Sex Offender scarlet letter, prison, a lost career, and probably a punitive discharge (maybe even a mandatory DD) is simply an indictment of the system, abysmal leadership at the top, and a horrible over-reaction.  This nullifies real sex assault victims, waters down the system and the nature of the complaint, and will ultimately backfire making the allegation an eye-rolling mockery.  
    The above allegations should amount to the loss of his leadership position, and some form of NJP and loss of rank and pay, a stern lecture, and back to duty.  When there is no permanent harm – as in this case where the “victims” will probably have zero impact of this 5 days after the “assault,” the punishment should fit the crime.  
    If the military keeps this up they’ll lose the privilege of adjudicating military justice – it’ll be turned over to adults with good judgement. 
     

  47. Mitch McDeere says:

    CD/Ed,
     
    Full acquittal from Military Judge.  Justice done, right?  Except SSG Adams will go back to the chow hall and nobody will know how he faced some stupid charges because the government wanted a Chapter 10.  Oh, and he paid a civilian attorney who knows how much to represent him on these ridiculous charges.  Meanwhile, I’m laying low hoping to get a TDS slot, then resign out of Wonderland.