It is sexual assault report card season for the Department of Defense, and the actual numbers reported don’t necessarily match the political rhetoric. And, the political rhetoric is, perhaps, particularly strident this season. That could be a concern given CAAF’s recent decision in United States v. Boyce, CAAF Dkt. No 16-0546/AF (CAAFlog case page).

In March, DoD’s Office of People Analytics released the results of a survey of sexual assault victims who had participated in the military justice process – the Military Investigation and Justice Experience Survey (MIJES) report. That report acknowledged that the survey’s methodology makes the report’s findings more anecdotal than empirical:

[T]he 2016 MIJES does not employ statistical sampling or scientific weighting. Therefore results from this survey cannot be generalized to the full population of military members who made a report of sexual assault; results can only be attributed to those eligible respondents who completed the survey.

MIJES Report at iv. With that caveat, the report’s findings, though unscientific, warrant some discussion.

First, the 2016 MIJES found that 38 percent of victims believed they had suffered retaliation for reporting sexual abuse. Id. at iiv. That number is significantly higher than the number reflected in the, also recently released, FY 16 DoD Annual Report on Sexual Assault in the Military (FY16 ARSAM), which reported the reprisal rate to be about 19 percent:

Of [the 58 percent of] Service members who indicated experiencing a negative outcome after reporting a sexual assault, 32 percent met the survey criteria described in policy and law for professional reprisal, ostracism, and/or maltreatment.

FY16 ARSAM, at 33-34 (32 percent of 58 percent is 18.56 percent).

Those statistics for the rate of retaliation – 19 to 38 percent – stand in contrast to assertions made by a prominent lawmaker. Senator Kristen Gillibrand recently asserted, here and here, that there is “a retaliation rate against survivors that remains at an unacceptable six out of 10 for a third year in a row.” That higher estimation – that the retaliation rate is closer to 6o percent than 19 percent – has been adopted by the media, here, here, and here.

Further, though she did not affix a percentage to the retaliation problem, Senator Clair McCaskill also recently lamented that there are “stubbornly high rates of survivors who report that they have been retaliated against by their peers after coming forward.” Similarly, Senators John McCain and Jack Reed recently called on DoD leaders to implement “needed protections to end retaliation against those who report sex-related offenses.” The result of all of this political attention, as one DoD official told reporters, is that “retaliation is on everyone’s mind.”

But, the issue of retaliation against military sexual assault victims is not the only topic that has inspired critical Congressional, and thereby media, attention. Senator Gillibrand also has complained that more sexual offense cases should go to trial and, once there, they should result in more convictions. Specifically, her office recently stated:

Perhaps most disturbing, this report [(the FY16 ARSAM)] shows that we have less not more accountability in the military justice system with fewer cases going to trial and with the relatively few that do, fewer cases are resulting in convictions[.]

That concern, too, has been noted and echoed by media outlets. In turn, political lobbyists, specifically Protect Our Defenders (POD), have joined in. POD released a statement complaining that “out of more than 4,500 unrestricted reports that were made in 2016, only 124 cases resulted in a conviction for a non consensual sex offense.”

POD’s assertion is backed by data contained in the FY16 ARSAM, at Appendix B, page 24, Figure 12. There it is revealed that, in FY 2016, 389 cases alleging a sexual offense were prosecuted through to a verdict. Of those verdicts, 261 included conviction on some offense, though not necessarily a sex offense. Of those 261 convictions, only 124 required the convict to register as a sex offender.

[Readers should note that the numbers in Appendix B are more relevant to POD’s argument than the numbers found elsewhere in the FY16 ARSAM, at Appendix C, page 29. Specifically, in Appendix C, DoD reported that it prosecuted 617 courts-martial where a sexual offense was alleged in FY 2016. Appendix C also appears on first glance, at least to this author, to assert that, of those 617 prosecutions, there were 260 convictions of a sexual offense (apparently comprised of 147 penetrative sexual offense convictions, and 113 contact sexual offense convictions). But, a closer inspection of that provision reveals that Appendix C actually only shows that, of the 617 individuals who were initially accused of a sex crime, 260 ended up being convicted of some offense, but not necessarily of a sex offense.]

As a result of the all of above – Congressional attention, media attention, and lobbyist attention – a narrative that the military prosecutes too few sexual offense cases and that courts-martial return too few convictions has taken form.

[The preceding 4 paragraphs have been edited as of 6/3/2017 to reflect clarifying information provided to me by POD.]

Through the 2016 MIJES report, DoD has added victims to the chorus of those complaining that the military justice system fails to hold offenders sufficiently accountable. The report notes, at page 140, that only 26 percent of victims who responded to the MIJES said they would recommend that another victim file an unrestricted report. Fifty-one percent said they would recommend other victims file a restricted report instead, and 23 percent said they would recommend filing no report at all. Id.

A deeper dive, at page 125, reveals that one of the most common reasons that responding victims gave for not recommending that other victims come forward was their belief that their assailant was not held appropriately accountable by the military justice system. Only 20 percent were satisfied with the action taken against the accused, 61 percent said they were dissatisfied, and the remainder were indifferent. Id. at 140.

Boyce shows that if the appearance of convening authority independence is not scrupulously guarded and protected from political pressure, then hard-won convictions might be forfeit. In that light, recent calls by prominent Congressional leaders to crack down on retaliation, to bring more prosecutions, and to return more convictions, are cause for concern. The risk that commanders might be tainted has been amplified by mass media reporting and the work of lobbyists. The demands for commanders to take more aggressive action have also been loaned the righteous patina of victim-protecting by the anonymous, unscientific, and context-free data collected and reported as part of the 2016 MIJES. Accordingly, given Boyce, it is as important now as it ever has been that commanders making disposition decisions be free, and be seen to be free, from these sorts of pressures.

48 Responses to “Scholarship Saturday: Two new DoD reports on sexual assault, Senatorial interest, and the specter of Unlawful Command Influence”

  1. Scott says:

    There is no examination of whether retailiation actually occurred. That’s the weakness of survey based analysis.  Just as there is often no test of whether a sexual offense actually occurred in survey or report based stats.  
     
    Additionally, accuser satisfaction wirh various aspects of the system is probably not the best metric for system fairness either.  An untruthful accuser will likely be dissatisfied with a no-action disposition, despite the fact that justice has objectively been done (if favorable treatment / a likely lifetime of VA benifits for an untruthful accuser and extreme life disruption but no formal action for an untruthfully accused is considered justice).  An honest accuser who misinterprets a situation, due to SHARP training or other factors, may similarly be dissatisfied with a no-action disposition  
     
    The first survey seems relatively honest about it’s own limitations.  But when third parties use it for their talking points they seldom/never convey the nuance. 

  2. Dew_Process says:

    Nice job on this Zeke!

  3. stewie says:

    Whelp….my plan to be a CDC after retirement certainly looks to be in no danger.

  4. President Comacho says:

    40% ish conviction rate. That indicates a serious problem but not the way the victim industry thinks. Until we stop worshipping victimhood no matter how incredible the allegation, this will only get worse. 
    Kathy Griffin is now claiming victimhood for her terrible behavior. Why? Bc it works in our society.
    Time for me to perform my fake outrage rituals for the day

  5. Bionic Barry Dylan says:

    Ostracism is the new wave of victim enabling that has me most concerned. No lay person is going to understand the highly convoluted definitions of ostracism as used in this context – they will fall back on the common definition and then suddenly not being someone’s friend on Facebook is ostracism.

  6. Isaac Kennen says:

    From page 70 of the MIJES report:
     

    Behaviors Consistent With Perceived Ostracism
    Table 4 presents the list of behaviors that align with perceived ostracism. Data found in Table 4 include estimates for eligible respondents overall, as well as respondents who fell into the Perceived Ostracism Rate (i.e., indicated experiencing a behavior consistent with perceived ostracism from their military peers and/or coworkers; believed that those who took the actions knew or suspected the respondent made an official [unrestricted or restricted] sexual assault report; and those who took the actions were trying to discourage them from moving forward with the report, or discourage others from reporting). Of respondents who met criteria for Perceived Ostracism, the majority indicated military peers and/or coworkers ignored them or failed to speak to them (for example, gave them “the silent treatment”; 89%), made insulting or disrespectful remarks or made jokes at their expense—in public (86%), and excluded them or threatened to exclude them from social activities or interactions (81%). 

  7. K fischer says:

    If I perceived a peer alleged a false sexual assault against a male in my unit, then I would be less apt to engage them in conversation at work.  The less contact the better.  If I am in a leadership position, then that is a different story.  Ostracism would be a no go.  And 32% are unhappy with the process?  Hmmmm.  That happens to be about the same  false allegation rate I calculated from Appendix B in a post a few weeks ago.
     
    I think it is high time to do a study on the false allegation rate in the military.  Because the military either has a false allegation epidemic that is ten times the civilian rate, or a turning a blind eye towards sexual assault epidemic.  My money is on the former.

  8. (Former) ArmyTC says:

    k fischer, how might you respond to a statement that an allegation that resulted in an acquittal does not, by itself make the allegation false? After all, the U.S. (for better or worse) eschews the “Scottish Verdict” of “not proven” in favor of the seemingly more definitive “not guilty.”

  9. Isaac Kennen says:

    (Former) ArmyTC,
    The question of whether, as you put it “an acquittal does not, by itself make the allegation false” is a bit more interesting today than it would have been a mere two months ago in light of the Supreme Court’s April decision in Nelson v. Colorado.  Applying that decision’s rationale: An accused goes to trial presumed innocent. An acquittal doesn’t disturb that presumption.  In turn, for the government to presuming the victim’s allegation to be true (despite having failed to prove it true) is inconsistent with affording the accused the presumption of innocence.  I don’t know whether an allegation that has lost the presumption of truth must be declared false… I’d say probably not.  But, I don’t think its a clear cut answer either way.

  10. stewie says:

    It’s absolutely a clear-cut answer. An acquittal, in and of itself, tells us nothing about whether an allegation is false. It only tells us that in that case, that panel did not find enough evidence to get them over the burden of proof.
     
    Now certainly the Venn Diagrams of acquittals and false accusations overlap, but they most certainly do not merge.
    And for kf, neither do the Venn Diagrams of those who make false accusations and those who are unhappy with the process. Unless you think panels ALWAYS convict the guilty and never acquit someone who actually did the crime? Our entire system is set up (correctly) against that idea.
     
     

  11. Isaac Kennen says:

    Can the government presume an allegation to be true enough to count for statistical purposes while at the same time presuming the accused to be innocent of that allegation?

  12. stewie says:

    Not really. It would require a case-by-case analysis and some sort of objective criteria. None of that is feasible.
     

  13. K fischer says:

    FATC,
     
    I would respond by recommending that we amend findings to include the “innocent beyond a reasonable doubt” finding.  And, I would ask whether the person asking the question spoke to any of the members of the panel about the case after the verdict, you know to see how the counsel’s performance was.  Sounds like the question would be posed by a TC or SVP, so I’d ask if they spoke to the LTC who during closing arguments looked like he wanted to jump over the rail and throats punch you for allowing an evil woman to ruin a good Officers career, or the panel member who referred one of their Soldiers to me who was going through a similar situation.
     
    Of course you can’t say an acquittal equals a false allegation.  I never did.  I looked at the cases that were unfounded where a victim was willing to cooperate and the Government had jurisdiction over the accused, but NO ACTION WAS TAKEN!  Not even an Article 15 or a GOMOR.  That number equates to a greater than 30% rate of false allegations.  Anecdotally, I looked at the cases I’ve defended or read about in the news to presume that the AFTJAG’s statement was DoD policy regarding how every case would go to trial unless there was clear evidence of innocence.

  14. K fischer says:

    stewie,
     
    You either don’t know Venn diagrams or crazy women who make false allegations.  Trust me, they overlap at some point.

  15. k fischer says:

    Stewie,
     
    Correction, you stated that they do not merge.  I agree, but they probably are close enough to say there is a correlation.

  16. A Random JAG says:

    k fischer,
    Your rate of “confirmed” false allegations is still too high.  You equate a victim willing to cooperate + Government having jurisdiction + no action taken = false allegation.  I know that’s easy to say from the Defense side, but anyone who sees these cases from the Government, SJA, or SVC/VLC side know that’s incorrect.
    The military, even today, doesn’t just take any case forward just because the victim wants it and the Government has jurisdiction.  The Government still wants to win the cases they take, and are still picking the strongest ones to go forward.  Most of the time they’re still difficult cases to win, because that’s the nature of sexual assault cases, but the vast majority are getting killed behind the scenes because of lack of corroboration.
    In other words, if there’s little to no corroboration of the victim’s complaint, then it’s an easy no prosecution.  You seem to be saying that anytime a victim is willing to testify that it will automatically face a GCM regardless of the facts, unless the Government has evidence or believes that the victim has affirmatively lied or made a false report.  That’s simply not the case.  Not bringing charges does not, and should not be, evidence of a false complaint, otherwise you’re making the same analytical mistakes others make when they claim that the sexual assault rate in the military is as high as 25%.

  17. Matt says:

    [quote]First, the 2016 MIJES found that 38 percent of victims believed they had suffered retaliation for reporting sexual abuse. Id. at iiv. That number is close to the number reflected in the, also recently released, FY 16 DoD Annual Report on Sexual Assault in the Military (FY16 ARSAM), which reported the reprisal rate to be 32 percent:

    Of [the 58 percent of] Service members who indicated experiencing a negative outcome after reporting a sexual assault, 32 percent met the survey criteria described in policy and law for professional reprisal, ostracism, and/or maltreatment.

    FY16 ARSAM, at 33-34. [/quote]
    Stating that 32% of the 58% of who indicated experiencing a negative outcome met the survey criteria for reprisal, ostracism, and/or maltreatment means that the percentage of self-proclaimed victims actually facing retaliation is closer to 19% (.32*.58). While this number is still high, it is more palpable than 32% (or 38%).
    It is unfortunate that senators and the media are not commenting on invalid perceptions of the other 68%. The fact that 68% of the 58% of respondents who perceived they were being maltreated did not actually meet the survey criteria for such a finding should create some questions as to those same victims’ abilities to understand the interactions (and how the law applies to those interactions) surrounding their initial sexual assault complaints, their perceptions of whether the government handled their cases appropriately, and their alleged treatment filing their reports.

  18. Matt says:

    Sorry for the horrible attempt at message board quotations. Also, I meant to type palatable, not palpable.

  19. k fischer says:

    A Random JAG ,
     

    You seem to be saying that anytime a victim is willing to testify that it will automatically face a GCM regardless of the facts, unless the Government has evidence or believes that the victim has affirmatively lied or made a false report.  That’s simply not the case. 

     
    Well, when I hear that AF TJAG tells Lt. Gen. Franklin’s SJA that a victim is to be believed and a case will be referred to a GCM, unless there is smoking gun evidence that the accused is innocent, then I don’t think I am too far out there in saying that where no action is taken like an Article 15, admin separation, GOMOR, or preferral of Court-martial charges, then there is probably smoking gun evidence indicating that the Accused is innocent and has been falsely accused.  Am I the only one who sees it this way?  You actually read the majority opinion in Boyce, right?
     
    Because it seems so easy to understand in light of AF TJAG’s directive, which I would imagine is the same across all the Services in light of Admiral Lorge’s affidavit about the Navy TJAG.  And, according to my experience at Benning, I have a hunch that is the Army’s policy, as well.
     
    To say it a different way, my hypothesis, which should be tested, is this: Where no action whatsoever was taken against the accused on a sexual assault allegation, then smoking gun evidence must have existed that the Accused was falsely accused, i.e. innocent.
     
    Do you agree?  If not, then tell me in what situation would there be valid charges where the Government has a cooperating witness and jurisdiction over a known Accused, but takes no action whatsoever?  And, don’t just make a vague reference to those “who sees these cases” from the SVC, Government, or SJA side.  I’m giving you the words of the TJAGs of two services that is quoted in opinions reversing convictions, so it’s not just my unsupported belief. 
     
    And “no corroboration” you say is enough to kill charges before preferral?  (Stay Random, anonymous, and gold, Ponyboy.)  In my experience, if there is a witness willing to say that the Servicemember Accused raped her, then her testimony in today’s military does not have to be corroborated by other evidence.  

  20. A Random JAG says:

    k fischer,
     
    You make fair references to both the Boyce and Barry cases.  I too am following them with interest and dismay, to say the least.  Political pressure does not a fair system make.  And I can only speak for my own experience in the trenches right now.  I would say that of the cases I have seen in my service (and it’s well into the hundreds by now), where there is a willing victim and jurisdiction over the accused, no action at all is taken against the accused in roughly half of those cases.  Most of the time it’s due to lack of corroboration.  Some of the time, like you said, it’s because the complaint was deemed false in some way, but that is a very small minority of those cases.  I just disagree with the assertion that jurisdiction + willing victim + not going forward = false allegation.
     
    Of course, I’m just an anonymous person on the internet, where no one knows I’m a dog.  So I understand if people are willing to give my words little weight.  But I think my experience more closely aligns with what people on the ground are seeing.  Feel free to disagree.

  21. k fischer says:

    Random JAG, I like you, but I disagree with you.  I think that your “take no action where there is a willing victim and jurisdiction over the accused, but a lack of corroboration for the victim’s testimony” is the policy for a small, small minority of military posts.  Anybody else have that policy?  Stewie, I know you don’t.  You ascribe to a policy similar to the AF TJAG but instead of smoking gun, you say “clear,” and instead of referred to trial, you say preferred to an Article 32, which in comparison sounds a bit more palatable. (h/t Matt)
     
    So, if a case involved a female who comes forward and says Snuffy raped me in his barracks room, and Snuffy says, “No, we had sex, but it was consensual” and without any other evidence other than her word, which is contradicted only by Snuffy’s denial, your CG would be advised to take no action?

  22. Concerned Defender says:

    Lots of dialogue about an acquittal not NECESSARILY meaning the accusation was false.  I have a proposed solution.  After every acquittal on a sex assault, it follows there is Probable Cause that the accuser filed a false allegation and committed perjury.  I propose that an acquittal is prima facia evidence of this, so there should be a trial at that time to see if she did indeed lie.  
    Using the twisted government logic, if she didn’t do it what’s the harm?  She should have nothing to worry about.  If she’s military, just flag her and give her a relief for cause and a GOMOR, and either send her to an involuntary separation or Court Martial and we’ll let the panel sort it out…  seems only fair.
    I tell ya, some of the “victims” I’ve seen in the military make Kathy Gifford look like a legit victim… what a disgrace.  Actually had a “victim” admit that she drank, made out, went to his room, undressed herself, gave him oral to keep him going when he went limp, and got on top of him – complain later she was the victim.  

  23. Concerned Defender says:

    Here’s where the military has gone so far afoul of the rights of an accused.  The starting point is a presumption of innocence.  That means, unless some compelling evidence is brought forth, he’s innocent.  
    If there’s purely allegation by a person that she was raped, but his response was “no, it was consensual” then that’s entirely insufficient to then ruin his life with admin actions and criminal allegations.  Now, if there’s extrinsic corroborating evidence (e.g. SIGNIFICANT intoxication by the alleged victim and not the accused, and/or violence, and/or weapon used), then perhaps that tips the scale.  But these garbage cases of “Oh, I had a sniff of beer and blacked out for six days and then four years later a SVA convinced me I was raped…” should result in the prosecutors and those involved losing their law licenses when they bring this garbage to trial.  They clearly can’t understand some fundamental parts in the Bill of Rights and allied documents.

  24. Philip D Cave says:
  25. TC says:

    CD,
    “After every acquittal on a sex assault, it follows there is Probable Cause that the accuser filed a false allegation and committed perjury.”
    Your lack of understanding of the standards for proof beyond a reasonable doubt and probable cause would be astounding, but for your history of not understanding things.

  26. DCGoneGalt says:

    Some days I get the feeling you are controlled opposition saying outrageous things to see who will take the bait, cd.  Today is one of those days.

  27. Concerned Defender says:

    @ TC – Oh, I have far more understanding of these things that you might grasp.  Probably been doing this a lot longer than you if you’re still a TC (pretty much the 1st – 3rd assignment for most JAGS).  I rarely meet TCs who are able to grasp the concepts of the Constitution or fairness.  They just want to take the path of least resistance to please their non-lawyer bosses and take the the path of least resistance and expeditious resolution (as evidenced by the thousands of terrible results, the overwhelmed DRB and BCMRs and appellate courts which take years to offer a fix, if any).  Bad TCs are the first line if that line of terrible outcomes…
    My comments are partly sarcastic and tongue in cheek, and partly serious.  Is a false or unproven allegation not in part slander/libel and a character assassination?  
    If you are totally and truly innocent, and suffered from the career ruin and character assassination of such an accusation, would you not want recourse including a civil and criminal action against that person?  Seems fair.

  28. stewie says:

    kf, there’s a light-years difference between a 32 and a trial. TC usually don’t even know what kind of case they have pre-32.
    Now, the destruction of 32s makes my position changed since now they can and in most cases probably should be waived since the AV almost never testifies at them anymore. But under the old version, I have zero heartache with the idea of sending any case without direct evidence of lying/impossibility to a 32. Particularly given just how bad CID is, and how green TC often are. You learn about the case one way or the other at the 32, or at least you used to. And you used to have a lot of cases squashed at the 32.
     
     

  29. Isaac Kennen says:

    Matt, Thanks for catching my math mistake! Indeed, 32 percent of 58 percent is about 19 percent … not 32 percent. I’ve made the corrections to the OP. 
     
     

  30. K fischer says:

    Stevie,
     
    Just like Mike Nifong learned about the case after he indicted three innocent men and Rolling Stone learned a lot about Jackie after they published the article accusing a fraternity of brutally raping her.  There is still a lot of damage done to ones career, right?  But, at least a dismissal after a 32 covered your Convening Authority.
     
    I think your opinion would be different and you would quickly close distance on that light year if you were the one in the accused chair and a green TC preferred charges against you so he could “learn about the case.”  But, you are correct, it’s not quite as bad as referring a case to trial.
     
    So, now that 32’s are like teats on a boar hog, do your TCs exercise any kind of diligence prior to sending a man to trial by the preferral of charges?

  31. an accused says:

     I will not play my violin too loudly because I am sure everyone that reads these comments is completely aware of an accused’s agony. With that said and trying to stay on topic of the original post, I must point out some obvious corrections that could/should be made.
    1. Military Criminal Investigators should stop inventing multiple charges out of ambitious interviewing of ex-lovers. Yes interview them, but stop putting words in their mouths and salivating at the slightest hint of something the TC says could fill 2 out 3 elements of a charge. The GOAL is fewer sexual assaults, yet the services investigating tactics invents new ones where they shouldn’t to prove cases that probably cant be proven. There’s a simple question of right and wrong, and this is simply wrong at even the most basic level.
    2.  By all means let the civilian judicial system handle as many of these cases as possible.  That would be one of the BEST ways to alleviate any future accusations from congress and the media.  After all, the civilian sector possesses a vast amount more experience than do most TC and DC. A zero tolerance policy requiring prompt reporting to civilian authorities and adequate investigative assistance could save the CA’s a lot of trouble. (DUH!)
    3.  At some point CAAF will finally face the tipping point of UCMJ articles vs the constitution and equal protection/due process.  I’ve read 100’s of these cases on here, and in so many instances rulings completely disregard common sense in favor of upholding the integrity of the institution itself. Obviously biased panels and pretending UCI doesn’t affect every 120 preferal for the simple fact that sexual assault handling is now included on OPR’s in the Air Force now are blatant errors to give it a nice word. The results in Boyce give clear language “damage to the public’s perception of the fairness of the military justice system as a whole” counts as UCI as it should. Yet, the institution insists that simple “instructions” can rectify these “unfairness” to coin a new word. When the decision to press forward or not affects the CC’s or CA’s career, that is UCI by design/prima facie.
    I agree that military members ought to adhere to a higher standard due to the nature that it is the profession of arms to take other human life when called upon, and as such we must be able to do it with as much moral sanding as possible. However, I believe that we must also be afforded, I want to say a greater protection, yet even an honest fair protection of the constitution would be a vast improvement since we sacrifice more than the average citizen to uphold it. A unanimous verdict to convict outside of combat field operated combat court-martials would be a nice start, and not incentivizing accusers.
     
    Lastly, THANK YOU so much to all of you that are fighting this fight. The high numbers of these false incidents is a statistic, yet on the single case level each one is a tragedy, and you are changing peoples lives, their families lives, and even their descendants lives with what you do everyday. Please don’t lose sight of all the good that is being done by passionate DC. You are the falsely accused and even rightly accused special forces and only line of defense against a stacked deck.
     
    Lawyers should be chosen because they can demonstrate a history rich in human traits, the ability to care, the courage to fight, the will to win, a concern for the human condition, a passion for justice and simple uncompromising honesty. These are the traits of the lawyer.”  Gerry Spence
     
     
     

  32. Concerned Defender says:

    By the time we reach an ART 32 hearing, irreparable damages have been done.  The Soldier (often innocent or as culpable as the drunken lover in a mutually bad decision sex encounter) by then has likely received a GOMOR, relieved of his job, received at least 1 negative OER/NCOER, been titled for federal crime(s), had his name smeared through interviews with everyone he knows alleging he’s a rapist (and for the bulk of people an allegation = guilt in public opinion).  He’s probably had his personal life stalled, and missed new assignments, courses, awards, or ETS and civilian job opportunities (I’ve seen all of these btw).  He’s perhaps spent thousands of dollars on civilian counsel.   The strain and stress of this year-long even leading up to an ART 32 often ends marital relationships, or causes further harm in their personal relationships.  Friends are lost… 
    So yeah, any TC who casually recommends going forward on weak charges should not be practicing law in that capacity.  There are real world consequences for innocent (nearly always) men.
     

  33. k fischer says:

    CD,
     
    “TC usually don’t even know what kind of case they have pre-32…You learn about the case one way or the other at the 32.”  So, what Stewie is saying is that the Government has to prefer charges to learn what kind of case they have.  I vote that Stewie is actually the Senator who said “We have to pass the bill [Affordable Care Act] to find out what’s in the bill,” or words to that effect.
     
    Just spit-balling here, but why can’t the TC go down to CID and review the CID file to find out what kind of case they have?  If the CID investigation sucks, then why can’t the TC interview witnesses CID missed in front of a paralegal, or obtain missing evidence they think might be relevant to the charges?  And, if the TC is so green, then why isn’t their COJ Supervisor making sure that a thorough investigation is conducted prior to drafting the charge sheet?  Where’s the SVP on this?  Why wasn’t the SVP taking the lead prior to preferring charges?  What about the Highly Qualified Expert?  Why can’t they be asked to assist?  How about TCAP?  What is TCAP doing to ensure that innocent men aren’t charged for crimes they did not commit when the TC is so green and incompetent that they have to prefer charges and see “what kind of case” they have at the Article 32????  Because the taxpayer in me has heartache over all the money being thrown at the military sexual assault “epidemic” with so many people sucking at it to the point that “TC usually don’t even know what kind of case they have pre-32.”
     
    Inferring that you have to prefer charges and get to an Article 32 to “find out what kind of case you have” is on par with CD saying that an acquittal should result in the preferral of charges for perjury.  However, I think that CD was making the point that if you treated a charge of perjury with the flippant attitude regarding probable cause with which sexual assault charges are treated, then an acquittal would be reasonable grounds to prefer charges.

  34. stewie says:

    kf I have no interest in interacting with you if you are going to play the “you wouldn’t do this if it involved you” silliness as if my positions are somehow pliable if I’m involved.  And your last sentence in your first response to me indicates you can’t read very well.
     
    Going to a 32 does not in and of itself ruin someone’s career. It is a natural function of the process, and yes the whole point of the old version of a 32 was to do the kind of deep investigation/examination that does not happen with CID. TC don’t investigate. They get the packet/file CID gives them, and we all know CID is pretty well not good. The old 32 process led to plenty of closed cases and those clients went back to their units and continued on with their careers, and their accusers were often looked at worse…because, after all, the hearing officer said there wasn’t enough there.
    And of course you take what I said and stretch it out to it’s most extreme, because we both know I never said ever single last case should go to a 32, yet you present it that way.
     
    I’ve already spoken pretty clearly on the new 32 process, so feel free to read it again, and if you need someone to explain the big words to you feel free. Otherwise, I’m not particularly impressed by your righteous indignation, as satisfying as it no doubt feels to you.

  35. Concerned Defender says:

    As usual, KF grasps with an astute keen eye the intricacies of the situation, and understands my point clearly.  And it’s again apparent that Stewie is not a lawyer and has never tried a case.  Exhibit 1025 is the fact that Stewie doesn’t understand that TC does, in fact, conduct some level of investigation.  If a TC isn’t conducting at least some investigation, they are jacked up.  An interview is a form of an investigation.  TCs should be visiting a crime scene.  TCs should be observing the evidence and creating theories.  These are all investigative actions.  Afterall, they possess a law degree whereas the E5 CID non-lawyer agents are just processing information.  Presumably the big brains in the room are the TC (although that’s not often the case).  In reality, their bosses want a Soldier prosecuted, SHARP says it’s a crime, so it must be a crime, and the TC simple handles the information and presents it without their own critical thinking…. and that is a travesty.
    The funny irony is that Stewie is chastizing and talking down to others, and doesn’t understand that an interview is inherently part of an investigation.  What are they teaching kids these  days in their burger flipping schools?  

  36. K fischer says:

    C’mon Stewie, lighten up.    Where did you learn this “TC can only prefer charges based on a CID report” policy?  Charlottesville or did you come up with this brilliance on your own?

  37. stewie says:

    Yeah, I mean TC go doing sex assault charge preferrals without a CID investigation all of the time…oh wait, no, they rarely do unless the civilians investigated instead (with a similar level of incompleteness).
     
    I’m beginning to wonder if your time as trial counsel was pre-WWI.

  38. K fischer says:

    Stewie, I would expect that in every case where there was a preferral charges there would be a criminal investigation conducted by law enforcement, either military or civilian, which in many times the investigation is inadequate to explain some of the huge holes in the Governments case particularly when it involves sexual assault.  I agree with you on this.  However, TC do not have to rely solely on this report when making charging decisions.  They can actually do some legal analysis to see what kind of case they have.  If there is something missing you send it back to CID or you figure it out yourself.  You don’t just prefer charges so you can find out what kind of case you have because your TC is green.  Like CD said, you are going to rely on an E5’s ability to investigate?  you know, most DA and PDs offices have a dedicated investigator assigned to their office to conduct investigations into the things the cops missed.  The military doesn’t have that.  They have the attorneys.  My guess is that you are an O5 or an O6.  Your lack of concern for potentially innocent men who are being charged with crimes at Court martial and deflection of blame to CID is disturbing.
     
    Reminds me of the time I got called by my Regimental Commander about a Trainee at the reception battalion who was charged with attempted murder.  Kid was threatened by two thugs from his inprocessing “platoon”in the chow hall that they were going to beat his butt when they got back.  So, he grabbed a sock and filled it with two batteries and when the two guys came looking for him he whipped the sock out and beat them unconscious.  The MPI called the duty attorney who happened to be a claims attorney for an opine and he opined attempted murder on the kid who was merely defending himself.  But, for the rest of his life when someone does a background check, they are going to see that he was titled for attempted murder.  But, who cares about that kid, right?  I mean he might just not get that job he was applying for or maybe he didn’t get accepted into that college he wanted to go to because the Claims attorney had to get back to watching the Red Sox game and didn’t ask the agent, “Why did he go after these two guys?”  Oh, he was defending himself?  Okay, you need to talk about this with the trial counsel.  Attempted murder is a pretty big deal to have on your record.

  39. some guy says:

    This focus on young inexperienced TC is misplaced.  32s are ordered buy O6 CCs on the advice of O5 SJAs and GCM referrals are decided by GOs on advice of O6 SJAs.  These decisions are not made by inexperienced 2nd assignment JAGs.  Quit pretending that they are.  If you think that the wrong cases are going to 32’s/trials, then have the decency to blame the people who actually make the decisions. 

  40. stewie says:

    Let me break it down for you then kf. You receive a report from CID, a case file that has a strong statement from the alleged victim, it has witnesses fav to the gov, it might even have other clear evidence and very little suggesting anything other than “go to trial.”
     
    TC pretty much do rely on this because ordinarily unless the defense asks for a delay, the flash to bang from receiving the packet to preferral to 32 is less than a month, and TC are busy doing a lot of other things, whether criminal law or working with their commanders on a host of other issues, or myriad other ankle biters that aren’t even legal, but military in nature.
     
    THEN a 32 happens, and a DC gets involved, and they start digging, and they find the holes, which is what they are supposed to do. They figure out things that are not apparent in the packet. It’s WHY we have an adversarial system. 
     
    And oh by the way, once CID closes a case, good luck “sending it back for more investigation” because they will refuse to do it. I’ve tried sending cases back for more investigation, and been told no, case is closed, we don’t do it.
     
    Furthermore, the standard for a preferral is not the standard for a referral which is not the standard for a trial.
     
    My “lack of concern” is in your wildly extreme viewpoint and of no concern to me. My level of concern is just fine. So is my actual understanding of the entire process.

  41. k fischer says:

    SG,
     
    Okay, then I also lay most of the blame on the CoJ, the Deputy SJA, and the SJA for failing to supervise their subordinate counsel and allowing charges to be preferred, so the Government can find out what kind of case they have at the Article 32 because CID’s investigation sucked and the TC is too green to conduct an adequate follow up on CID’s investigation.
     
    I think Stewie’s statements are an anomaly.  Most people recognize the adverse impact that the preferral of charges and the convening of an Article 32 to investigate the charges has on Soldier’s career.  Stewie tries to say it does not in and of itself ruin a person’s career, which makes it sound like it isn’t a big deal.  The difference in retired pay with 1 rank that was not reached because a falsely accused was flagged during his first and second look at promotion is a pretty big deal.  Also, I don’t think that most TC’s are conducting zero pre-32 investigation or getting charges preferred because it’s the only way they can figure out what kind of case they have at the Article 32 due to their greenness and CID’s incompetence.  I think that most shops prepared for the Article 32 and had their case set up pretty well through their review of the CID file and other investigation the TC undertook.  However, there are offices like who do like Stewie says.  Not sure they would do that to “find out about the case” but I do know some would do it, so they could quickly get a recommendation for a dismissal, if warranted, in order to provide cover for their Convening Authority.   In other words, they have conducted a thorough investigation, they know the charges are bs, and they get a 32 convened, so they can say it was investigated.  I had a TC who came in from another post to help out the TC at the 32 tell me that he didn’t know a whole lot about the case, but it seemed like it was a dog and pony show to get the case dismissed.  And, I’m sure that decision was made at a lot higher level, like you said, and wasn’t the Trial Counsel’s idea.

  42. k fischer says:

    Stewie,
     
    Okay.  Truce.  I see your point.  You have a different technique than I do.  If I were a TC, then I would prefer to conduct some investigation of my own after receiving the CID report, so I don’t waste a half a day at an Article 32 if the charges are BS or get blindsided by Defense counsel.  And, I can usually figure out the holes in the Government’s case pretty quickly just by reading the CID report without having the benefit of talking to the Accused, so I don’t need Defense counsel to show me what the truth is, like you might have.
     
    And, your way generates a lot more cases, which generates a lot more inquiries, which generates a lot more civilian attorney’s fees, so I guess your level of concern is just fine, Bromigo.   Bygones.  Keep up the great work.

  43. stewie says:

    kf, no not really a truce. First, I didn’t say it was “no big deal.” What I said was it does not in and of itself ruin someone’s career. Something can be one and not the other. But you deal in such black white absolutes I realize you have a hard time understanding such concepts. Second, “the way I do it” is the way it’s done by just about everyone. IF we had a system where trial counsels had all the time in the world, did nothing but trials, then sure, they could do investigations at their leisure. They don’t. They are forced to rely on CID. Which is a substandard organization.
    Third, as usual, you take what someone says and spin it beyond reason. Neither I nor anyone else said that every case is preferred “solely so we can get to a 32 to see what case we have.” What I said, and what almost every does, is that you don’t often see EXACTLY what kind of case you have until it’s hit the first fire from defense. I fail to see how that is remotely controversial. A TC has enough information to get to probable cause which is all that is needed for an opine, which is all that is needed for CID to stop investigating.
     
    It USED to be that you got to see much more of what you case was about at the 32. And that was FINE. Because the 32 was a real proceeding back then, and it was an arena where DC OFTEN got cases dismissed. I got more cases dismissed at 32 for rape then I got acquittals for rape as DC (and spoiler alert, my next rape conviction as a DC will be my first one). Because the DC has several advantages the TC does not.  They have no other responsibilities other than defending clients. And, they have the client, who has a ton of information the TC does not. The client knows about the three witnesses no one else knows about because the AV failed to mention them to CID or TC.  The client knows about the actions of the AV, how she was actually on top the entire time.  The client knows the timelines.  The client knows a lot of things the TC can’t know.  And, as you say, since sooooo many AVs lie, then the TC and CID are stuck with a flawed version that doesn’t get more clarity until the other side weighs-in with more information.
     
    So no, you don’t really see my point. You see an absurd caricature you’ve created that lets you play the silly morality thing you like to do.  I made my comment about 32s years ago well before the changes in how they are conducted sapped them of their import. I have no qualms about that statement as 32s stood at that time, nor the idea that TC don’t really know their case and in most cases except the blindingly obvious ones one way or the other can’t know until DC gets a few licks in.
     
    but sure, you “see my point alright.”

  44. Matt says:

    Is anyone aware of a case where the a case was referred to trial, but a TC refused to proceed to trial citing ethical concerns based on the lack of evidence? JAGINST 5803 (Rule 3.8 discussion) contemplates handling this by stating, “Trial counsel may have the duty, in certain circumstances, to bring to the court’s attention any charge that lacks sufficient evidence to support a conviction. See United States v. Howe, 37 M.J. 1062 (NMCMR 1993).” If such a situation did occur and the TC makes the concern known prior to trial, does the STC just appoint a new TC until one of them feels the obligation to bring it to the court’s attention is not triggered?
    In the alternative, has anyone ever seen a case where a TC was forced to take a case to trial despite clear and convincing evidence supporting the accused’s guilt, yet obtained a conviction? In those cases, did that TC then report it to the appropriate channels as required by 3.8(d). I read subsection (d) as not having the requirement that it is newly discovered evidence, which is a prerequisite under 3.8(c). I suppose a TC could frame the analysis as that which the TC considered clear and convincing evidence as to innocence prior to trial may not have necessarily been clear and convincing enough if the accused was convicted anyway. 

     

     

     

  45. stewie says:

    But I’d again point out that referral is not preferral. Different standards. That’s why you need the SJA to sign the pretrial advice for referral. TC isn’t qualified to give that advice. And if the TC doesn’t believe the case should go forward he/she should be talking to the CoJ and SJA saying so. I’d guess those certain circumstances would be very narrow indeed because it would mean disagreeing with probably several much more experienced attorneys including the, all things being equal, most experienced attorney in the command.

  46. President Commacho says:

    About a year and a half ago I spoke w a senior cid agent who almost exclusively investigated  sexual assault allegations. She explained that different versions of the same event ( in my clients case , each of the 4 times she was interviewed, new allegations came out and none of the details about the original allegations even were remotely similar to the last telling)is normal no matter how contradictory. It is normal for victims to misremember and if we find a inconsistent statement it’s not up to us to look into. The defense lawyer can do that. All I could say was “please please tell me you are messing w me”. She was not. Sad that one of the more dangerous places in the army is being alone near a female soldier; its bad for your freedom 

  47. stewie says:

    She didn’t happen to be in..say…Central Missouri did she? Yes, CID is a huge part of the problem IMO.

  48. K fischer says:

    I was going to say Ft. Benning, but you said the AV was interviewed four times.  We’re lucky to get CID to interview the AV once here at Benning.