CAAFlog » Military Justice Scholarship » Scholarship Saturday

A gracious reader directed me to a recent article authored by Dr. Melissa Hamilton in the Boston College Law Review entitled Constitutional Law and the Role of Scientific Evidence: The Transformative Potential of Doe v. Snyder, 8 B.C.L. Rev. E. Supp. 34 (2017). In her article, Dr. Hamilton discusses the United States Court of Appeals for the Sixth Circuit’s August 2016 decision in Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016) (Justia). That decision is pertinent to military justice practitioners for a couple of reasons.

First, the Sixth Circuit held: “[w]e conclude that Michigan’s [Sex Offender Registration Act (SORA)] imposes punishment.” 843 F.3d at 705. This contrasts with CAAF’s 2014 decision in United States v. Talkington, 73 M.J. 212 (CAAFlog case page), where the Court opined that sex offender registration was “a penalty for committing a crime[,]” 73 M.J. at 215, but did not “constitute punishment for purposes of the criminal law[,]” 73 M.J. at 217.

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The Military Law Review recently published an article by Army Major Angel M. Overgaard, one of the prosecutors from the Manning case.  In her article, Redefining the Narrative: Why Changes to Military Rule of Evidence 513 Require Courts to Treat the Psychotherapist-Patient Privilege as Nearly Absolute, 224 Mil. L. Rev 979, 984-985 (2017), Major Overgaard explores the intersection between a patient’s privilege under MRE 513 to keep communications with mental health providers private, and an accused person’s right to receive a fair trial.

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Just a few weeks ago, this blog noted that CAAF had been so “unsettled” by the courtroom behavior of a military prosecutor in United States v. Sewell, No. 16-0360 (CAAFlog case page)that the Court named the prosecutor in the decision. However, ultimately, the Court found the conduct was harmless beyond a reasonable doubt and affirmed the conviction and sentence.

On February 21, the Sewell case was featured in an article published in The Daily Signal, which is the Heritage Foundation’s “digital-first, multimedia news platform.” The article, entitled “Latest Case of JAG Malpractice Shows Pressing Need For Reform,” was authored by the Manager of the Heritage Foundation’s National Security Law Program, Charles “Cully” Stimson, who is also, according to his Heritage Foundation biography, a senior naval reserve JAG. An article dispersed exclusively online by an entity derived from a political “think-tank” and aligned with a Political Action Committee will not normally constitute the sort of scholarship this column covers. However, this piece is an exception because it so precisely critiques a fundamental aspect of the military justice system, and because The Heritage Foundation reportedly “wields clout” within the new administration. For those reasons, it is worthy of note even if it is a bit polemic.

The article takes pains to publicly name the offending prosecutor from Sewell, and, in its opening volley, stridently declares:

The Court of Appeals for the Armed Forces (the top military court) has slammed another Army trial prosecutor for egregious misconduct in an Army court-martial.

Id.   Read more »

A reader brought my attention to a recent article published in the Washington University Law Review.  In his article, Unraveling Unlawful Command Influence, 93 Wash. U. L. Rev. 1401 (2016), Professor Monu Bedi, of DePaul University College of Law, offers a comparative analysis of how the military and civilian jurisdictions handle allegations of prosecutorial misconduct and contrasts that with the approach that military courts take when a commander, as opposed to the prosecuting lawyer, is the person who has committed the misconduct.  In evaluating each of these scenarios, Professor Bedi plots them along a continuum that values “systemic integrity” on one end and “individual autonomy” on the other.

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Military jurisprudence concerning the proper victim to charge in an electronic theft case was cumbersome after CAAF’s 2014 decision in United States v. Cimball Sharpton, 73 M.J. 299 (CAAFlog case page).* In that case, the Court held that Cimball Sharpton had stolen from the Air Force when she misused her government purchase card – she had not stolen from the card-issuing bank or the vendors where the card had been illicitly used.

In its June 2016 decision, United States v. Williams, 75 M.J. 129 [Update: link corrected] (2016) (CAAFlog case page), CAAF lamented its “unfortunate choice of language in Cimball Sharpton” (75 M.J. at 134) and set about clarifying the applicable standard:

We reiterate, in the usual case of a credit card or debit card larceny, the “person” who should be alleged in the specification is a person from whom something was obtained, whether it is goods or money.

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It is commonly understood that appellate courts exist to serve two functions – “(1) correction of error (or declaration that no correction is required) in the particular litigation; and (2) declaration of legal principle, by creation, clarification, extension, or overruling.” See J. Dickinson Phillips, Jr., The Appellate Review Funtion: Scope of Review, 47 Law & Contemp. Prob. 1 (Spring 1984). CAAF was created to be the military jurisdiction’s court of last resort—it’s the military’s Supreme Court. See Noyd v. Bond, 395 U.S. 683, 694 (1969) (oyez) (related CAAFlog post).

In a recent article published by the Vermont Law School, In Order to Form a More Perfect Court: A Quantitative Measure of the Military’s Highest Court’s Success as a Court of Last Resort, 41 Vt. L. Rev. 71, Captain (USAF) Rodrigo M. Caruço posits that, in a healthy system, the work of a court of last resort, such as CAAF, should be almost exclusively declaration of legal principle rather than error correction. Captain Caruço reached that conclusion after having studied SCOTUS decisons and decisions from State courts of last resort. Those high courts rarely engage in error correction. In contrast, CAAF appears to spend just under half of its time correcting errors in individual cases rather declaring law for the military jurisdiction. Id. at 108. Captain Caruço identifies two causes for this: 1) incompetence by advocates and courts below, and 2) (perhaps because of that incompetence) CAAF does not yet feel comfortable behaving as a court of last resort should. Read more »

Two recent law review notes published by the University of Virginia and the University of Illinois start from the same premise: that the military’s zealous sexual assault prevention and response efforts have compromised the military justice system’s ability to appropriately and reliably dispose of allegations.

In his note, Overcoming Overcorrection: Towards Holistic Military Sexual Assault Reform, 102 Va. L. Rev. 2027 (2016), Greg Rustico favors giving prosecutorial discretion for all crimes with civilian analogues to judge advocates, rather than vesting that power in commanders.  In contrast, a note by Heidi Brady argues for giving prosecutorial discretion in the military justice system to Department of Justice lawyers.  See Justice is No Longer Blind: How the Effort to Eradicate Sexual Assault in the Military Unbalanced the Military Justice System, 2016 U. Ill. L. Rev. Online 193.

In supporting their recommendations, Mr. Rustico and Ms. Brady point to relatively recent changes to the military justice system – such as the revision of Article 32 and the requirement that a commander’s performance/fitness appraisal consider how they handled allegations of sexual assault within their units.  Both also spend a good bit of time asserting that the military’s sexual assault prevention and response programs have tainted military court-martial panels.  Ms. Brady also argues that prosecutorial discretion needs to be taken from the Department of Defense in order to counterbalance certain aspects of the military justice system which she views as being inherently unfavorable to the accused, such as the fact that verdicts are not required to be unanimous, the lack of dedicated defense investigators, the lack of dedicated funding for the defense function, defense counsel’s inability to obtain equal access to documents and witnesses before referral, and the fact that the defense is not permitted to interview victims without having a government-appointed lawyer (either the prosecutor or a victim’s counsel) present.  Neither Mr. Rustico nor Ms. Brady address the sweeping changes which were recently signed into law through the Military Justice Act of 2016, which was this blog’s #1 Military Justice Story of 2016.

The question of whether commanders should retain their prosecutorial discretion, and if not, then where that responsibility should fall, has been a topic of discussion for several years now, on this blog and elsewhere:

• Spilman, Zachary D, Blame all the lawyers [Commentary], Baltimore Sun (March 31, 2014).
• Blog post: “Thinking Slow About Sexual Assault in the Military”
• Blog post: Opposing views on civilianizing military justice
• Blog post: Scholarship Saturday – Professor Schlueter responds to the siren songs for reform
• Blog post: Scholarship Saturday – The plight of the accused

In an era when victims’ interests and the failures of the Department of Defense to adequately address sexual assault within its ranks are constant messages, perhaps SSgt Marks’s experience will remind us of the traumas suffered by the innocents accused and serve as a caution to those wielding the awesome power to prosecute.

That’s the final sentence of a compelling article in the most recent issue of the Air Force Reporter: Major Christopher J. Goewert, The Accused The Unacknowledged Victim of the Military’s Robust Prosecution of Sexual Assault, The Reporter, Vol. 43, No. 1 (2016) (direct link to article).

The article describes a sexual encounter, a subsequent (and lengthy) investigation, and the eventual acquittal of an Air Force accused (SSgt Marks is a pseudonym):

The investigation continued for over a year as determined agents located all of the party-goers and obtained statements which painted a picture of a consensual group romp—a spur of the moment orgy, which was embarrassing in retrospect, but to the guests was not criminal. SSgt Marks was duly charged with wrongful sexual contact and indecent acts.

The author’s use of the term duly charged is, itself, a little terrifying. But the article includes details of actual terror experienced by the accused:

My mind overflowed with the thoughts of what could happen: the odds were not in my favor. I was worried that everyone would believe her because she was saying she was a victim and wouldn’t believe in me. I felt like the decision was already made and I was fighting a losing battle—it was like I saw a wrongful judgment would be forced on me and there was nothing anyone could do to change it. I broke down and cried a handful of times. I became fatalistic about it.

Before debating military justice, one must understand key points about the system:

First, the military justice systems procedures closely parallel many of the procedures used in civilian criminal justice systems. Second, a military accused is entitled to most, if not all, of the constitutional protections that are available to someone being tried in a civilian criminal court. Third, commanders are an integral part of the military justice system. Finally, lawyers and judges are heavily involved at all levels of the military criminal justice system.

David A. Schlueter, American Military Justice: Responding to the Siren Songs for Reform, 73 A.F. L. Rev. 193, 204 (2015) (complete volume available here) (direct link to article).

From this position, Professor Schlueter’s article tackles three siren songs: Eliminating or reducing the commander’s prosecutorial discretion; Limiting court-martial jurisdiction to certain offenses, and; reducing the commander’s ability to grant post-trial clemency.

He concludes that reducing command discretion would undermine the system and good order and discipline in the forces, that limiting jurisdiction would create more problems than it would solve, and that the recent UCMJ changes limiting the convening authority’s clemency power should be abandoned.

The history of jury trials is rich with individual examples of nullification, a practice meant to bring about a just result or signal a change in the community conscience. Over time, the practice has become disfavored; civilian and military judges have prohibited nullification tactics in voir dire, 10 arguments, and instructions. Yet present panel guidance tells members to decide cases through consideration of the law, the evidence, and each members own conscience. And consequently, despite the military’s emphasis on strict obedience to the law, discretion exists within its justice system to allow members to hear arguments on the merits of both the facts and laws charged. Military judges should use this discretion and allow nullification in appropriate cases.

Major Michael E. Korte, He Did It, but So What? Why Permitting Nullification at Court-Martial Rightfully Allows Members to Use Their Consciences in Deliberations, 223 Mil. L. Rev. 200, 103-104 (Spring 2015) (direct link to article).

Recognizing that (and discussing the reasons why) efforts at obtaining jury nullification in a criminal case are generally barred, the author sketches out reasons why “in the limited circumstances of the factually guilty but morally blameless accused, nullification is an appropriate exercise of the discretion and trust entrusted to a panel comprised of those the convening authority hand-selected for their judicial temperament and experience.” Korte, supra, at 129. Those limited circumstances include a case that does not involve “only universally accepted criminal charges,” that presents evidence to “support an eventual nullification argument,” and that ends with an argument that “contain[s] the hallmarks of a nullification argument” (including appeals to the members’ conscience, discussion of the direct consequences of conviction, and questioning of the law at issue). Korte, supra, at 133.

The author also illustrates how current law allows for nullification. For example:

The military judge’s standard Benchbook instructions, however, allow panels the opportunity to acquit even when there is no reasonable doubt as to guilt. This opportunity is written into the standard instructions relating to the instructions on findings. These instructions state that where there is reasonable doubt as to the guilt of the accused, “that doubt must be resolved in favor of the accused, and (he) (she) must be acquitted . . .”

The instructions continue, describing the alternate scenario: “However, if on the whole evidence you are satisfied beyond a reasonable doubt of the truth of each and every element, then you should find the accused guilty.”

The significance of the differing standards cannot be understated. The rules for courts-martial protect the accused by mandating a “not guilty” verdict when more than one-third of the panel members have reasonable doubts as to guilt. The same rules, as delineated in the standard Benchbook instructions, do not expressly require a “guilty” verdict when the members have no reasonable doubt as to guilt. Thus, panel members who find that the government has met the elements beyond reasonable doubt have latitude to find the accused “not guilty” because the members merely should find the accused guilty. This deliberate language allows for nullification in the limited cases where the panel members find that the accused committed the offense, but they do not wish to convict. These instructions are not inconsistent with Article 51(c), which does not specifically require instructions on panel obligations where all elements are met, opting instead for a clear instruction that the accused is presumed innocent until guilt is established by evidence beyond reasonable doubt.

Korte, supra, at 133.

An article published in the recent edition of the Air Force Law Review considers the new Article 32 (analyzed in this post) and concludes that the new version is “not revolutionary and will not significantly alter the nature of the Article 32 process.” Major Christopher J. Goewert and Captain Nichole M.Torres, USAF, Old wine into new bottles: The Article 32 process after the National Defense Authorization Act of 2014, 72 A.F. L. Rev. 231, 247 (2015) (complete volume available here) (direct link to article).

The authors explain that “when the Article 32 investigation was conceived in 1949, it was intended to be a probable cause hearing and not a sweeping mini-trial.” Goewert and Torres, supra, at 236. Accordingly,

Amending the language of Article 32 from “investigation” to “preliminary hearing” will not change the complexion of Article 32 hearings in any substantive form. Although the text of Article 32 has superficially changed, the two most critical questions that were addressed at the Article 32 investigation, that of probable cause and what disposition should be made of the case, remain in the new Article 32 language.

Id. at 238. Significantly, the authors note that “while the language of the old Article 32 does not explicitly state that the preliminary investigation was meant to be used as a discovery tool, discovery has always been part of its purpose.” Id. at 239. They also note that “the role of defense counsel in seeking discovery at the preliminary investigation is now expressly limited.” Id. at 241. Nonetheless:

the process for conducting the Article 32 hearing described in R.C.M. 405 is similar to the process of a federal preliminary hearing, which means discovery might still be a practical benefit derived from cross-examining witnesses and reviewing evidence. . . . Although defense counsel may be restricted from going on a “fishing expedition” at the Article 32 preliminary hearing, similar to a federal preliminary hearing, it will still offer some collateral discovery benefits to the accused.

Id. at 244. Finally, considering what types of evidence the preliminary hearing officer may receive and consider under the new statute and rules, the authors write that:

R.C.M. 306 provides an extensive list of factors for the convening authority to consider. Since the Article 32 hearing officer has as one of his/her responsibilities to make a recommendation as to disposition to the convening authority, the hearing officer should consider evidence presented by either party that addresses any of these factors. These factors allow the defense to present evidence and cross-examine witnesses to an extent beyond that of a pure probable cause determination.

Id. at 246.

In an article published in the Spring 2015 edition of the Military Law Review (complete issue available here), Colonel Jeremy Weber, USAF, who is currently assigned as a judge on the Air Force Court of Criminal Appeals, observes that “no subject is more critical yet more neglected in appellate practice than standards of review.” Colonel Jeremy Stone Weber, The Abuse of Discretion Standard of Review in Military Justice Appeals, 223 Mil. L. Rev. 41 (Spring 2015) (available here).

Standards of review matter because many appellate issues are close calls. Trial judges are often called upon to rule on issues when more than one “right” answer may be possible; reasonable people in the trial judge’s situation may all agree on the correct legal framework for the issue but reach different conclusions. At the heart of the matter, the standard of review determines what the appellate court is doing when it reviews a trial judge’s actions. Is the appellate court simply determining the right “law” to apply to the issue, or is it making a judgment call about the trial judge’s determination? Does the appellate court consider the issue important enough that it must review the issue with a clean slate or do other interests dictate granting the trial judge some latitude in determining a course of action? Ultimately, then “a standard of review answers two similar, yet different, questions: (1) How ‘wrong’ the lower court has to be before it will be reversed, and (2) What is necessary to overturn the lower court’s decision?”

Weber, supra, at 43-44. The article begins with a brief discussion of four standards: de novo (for questions of law), plain error (for forfeited errors), clearly erroneous (for findings of fact), and abuse of discretion. The article then closely examines that final standard.

Judge Weber makes nine observations:

A. Abuse of Discretion is a Catch-All Phrase that Encompasses Review of Several Distinct Types of Issues

B. Abuse of Discretion Represents a Spectrum of Deference, Not One Fixed Standard

C. Military Appellate Courts Have Not Solved the Mixed Questions Challenge

D. Military Appellate Courts Are Generally Less Deferential Than Their Civilian Counterparts in Employing the Abuse of Discretion Standard

E. The Unique Authority of the Courts of Criminal Appeals Allows for Increased Appellate Scrutiny

F. Government Interlocutory Appeals Involve a Special Class of Abuse of Discretion Review

G. The Abuse of Discretion Standard Does Not Cover Review of Decisions by the Courts of Criminal Appeals

H. Military Judges Can Take Certain Steps to Increase the Amount of Deference Their Rulings Enjoy

I. Abuse of Discretion Review is Inherently Tied to the Issue of Prejudice

Below is the entire text of an open letter purportedly written by a female enlisted member of the United States Air Force. The original is posted here.

Maybe this letter is real, and maybe it’s a work of fiction; but its sentiment is undeniably true. The only certainty in the politicization of the military’s response to sexual assaults is that there will be victims.

Dear SARC,

I got up this morning as an Airman in the United States Air Force. I got up and I put on my uniform, I pulled back my hair, I looked in the mirror and an Airman looked back. A strong, confident military professional stared out of my bathroom mirror, and I met her eyes with pride. Then I came to your briefing. I came to your briefing and I listened to you talk to me, at times it seemed directly to me, about sexual assault. You talked about a lot of things, about rivers and bridges, you talked about saving people and victimization. In fact you talked for almost a full ninety minutes, and you disgusted me.

You made me a victim today, and I am nobody’s victim. I am an American Airman in the most powerful Air Force in the world, and you made me into a helpless whore. A sensitive, defenseless woman who has no power to protect herself, who has nothing in common with the men she works with. You made me untouchable, and by doing that you made me a target. You gave me a transparent parasol, called it an umbrella and told me to stand idly by while you placed everything from rape to inappropriate shoulder brushes in a crowded hallway underneath it. You put my face up on your slides; my face, my uniform, my honor, and you made me hold this ridiculous contraption of your own devising and called me empowered. You called me strong. You told me, and everyone else who was listening to you this morning that I had a right to dictate what they said. That I had a right to dictate what they looked at. That I had a right to dictate what they listened to. That somehow, in my shop, I was the only person who mattered. That they can’t listen to the radio because they might play the Beatles, or Sir Mix-A-Lot, and that I might be offended. That if someone plays a Katy Perry song, I might have flashbacks to a night where I made a bad decision. I might be hurt, and I’m fragile right? Of course I am, you made me that way.

You are the reason I room alone when I deploy. You are the reason that wives are terrified that their husbands are cheating on them when they leave, and I leave with them. When I walk into a room and people are laughing and having a good time, you are the reason they take one look at me and either stop talking or leave. They’re afraid. They’re afraid of me, and it’s because of you. They are afraid that with all of this “power” I have, I can destroy them. They will never respect me or the power and the authority I have as a person, or the power I have as an Airman, because I am nothing more than a victim. That I as a victim, somehow I control their fate. With one sentence, I can destroy the rest of their lives.

“He sexually assaulted me.”

I say enough. He didn’t assault me, you did; and I say enough is enough. If you want to help me, you need to stop calling me a victim. If you want to save me, you need to help me to be equal in the eyes of the people I work with. If you want to change a culture, you need to lessen the gap between men and women, not widen it. Women don’t need their own set of rules: physical training scores, buildings, rooms, raters, sponsors, deployment buddies. When I can only deploy with another woman ‘buddy’ you are telling me and the people around me that I can’t take care of myself. When you forbid me from going into my male friends room to play X-Box on a deployment with the other people on my shift, you isolate me. When you isolate me, you make me a target. When you make me a target, you make me a victim. You don’t make me equal, you make me hated. If I am going to be hated, it will be because of who I am, not because of who you have made me. I am not a victim. I am an American Airman, I am a Warrior, and I have answered my nation’s call.

Help me be what I am, or be quiet and get out of my way.

Believe the victim is a term so commonly uttered in the context of sexual assault prosecutions that it’s approaching a cliche. But “one of the fundamental tenets of our criminal justice system requires that we start by believing, not the accuser, but the accused—a concept more commonly known as the presumption of innocence.” Colonel Daniel J. Higgins and Major Shad R. Kidd, USAF, Start by believing – the Accused, The Reporter Volume 41, Issue 2, at 16 (2014) (available here).

Using psychology as an example, the authors highlight the different between care-giving and truth-seeking:

“The major role of psychologists working in clinical settings, whether as psychotherapists or as psychological evaluators, is to help the client. What is learned about the patient is used to benefit the patient in terms of personal growth and support. However, in forensic psychology the role of the expert is significantly different. Forensic psychologists are charged with using the results of their assessment to help or educate the court, without regard to the potential benefits to the examinee.” The goal is to develop evidence and work toward truth—whether that is easy for the patient to experience or not. Both roles are important. Both roles are necessary. But they are distinctly different roles.

Higgins & Kidd, supra at 18 (quoting Irving B. Weiner, ed. Handbook of Psychology, 4 (2003)) (emphasis in original). Applying these principles to military justice, the authors conclude that:

Air Force leaders, and those tasked to advise them, should first look to context. If the context is justice (e.g., determining disposition of allegations, trial matters), “starting by believing the victim” should have absolutely no place in their decision-making or advice. If, on the other hand, the context relates to Special Victim Capability (e.g., humanitarian moves, VA services), “starting by believing the victim” may be appropriate.

Higgins & Kidd, supra at 18. An anecdote highlights the danger of conflating criminal justice with :

The pressure felt by the special court-martial convening authority was evinced in the push note that accompanied his referral recommendation. He clearly recognized the weakness of the case (late reporting, no forensic evidence, alleged victim with a very poor character for truthfulness, etc.) and the likelihood of acquittal, but he wrote that the Air Force “owed” her a court-martial. His thinking, as should be obvious to anyone familiar with the basic precepts of criminal law, was completely off-base. The military justice system owes society justice and the accused due process; it does not “owe” an accuser a court-martial. This convening authority’s statement is nonsensical from a military justice perspective but understandable from a services or treatment perspective—the problem is that the note was written in a military justice context.

Higgins & Kidd, supra at 19.

The article concludes with a powerful call to action:

As the guardians of the military justice system, it is our duty to ensure we provide America’s Airmen a fundamentally fair and impartial process. Doing so requires that we ensure all Air Force members are properly trained that in the criminal justice context, we must all start by believing the accused and never vary from that presumption unless and until his or her guilt has been proven by legally competent evidence beyond a reasonable doubt. Permitting any training to undermine these guarantees would constitute a failure of our most fundamental duty as judge advocates.

Higgins & Kidd, supra at 19.


Included in the most recent issue of the Military Law Review is Julie Dickerson, A Compensation System for Military Victims of Sexual Assault and Harassment, 222 Mil. L. Rev. 211 (Winter 2014) (available here).

The article considers and rejects numerous existing methods to compensate victims of crimes tried by courts-martial, concluding that none are adequate. For instance:

  • Civil suits against the Government (under a vicarious liability theory) are barred by Feres. Dickerson, supra, at 218.
  • No-fault compensation systems (VA disability and TSGLI) are “limited in scope.” Dickerson, supra, at 220.
  • Restitution is dismissed as “unlikely.” Dickerson, supra, at 225.
  • State compensation boards are deemed “inadequate.” Dickerson, supra, at 226.

The author then proposes creating a separate “Military Crime Victims Compensation Board” (MCB):

Organizationally, the MCB should be established under the DoD Office of the Under Secretary of Defense for Personnel and Readiness (Sec Def P&R). . . .

After the MCB reviews a victim’s application and determines the compensation owed, the payment order would be sent to the Defense Finance and Accounting Service (DFAS), the victim, and the perpetrator. The DFAS would wait thirty days, and if no notice of appeal is filed, pay the victim and take action to garnish the perpetrator’s pay. To administer appeals, the Sec Def P&R could utilize the services of judges assigned to the Defense Legal Services Agency, which already has an appeal process in place for DFAS claims and security clearances. If the offender is discharged from the service, DFAS should refer the offender’s debts to the Treasury Department for collection through the Internal Revenue Service (IRS).

Dickerson, supra, at 241. Notably, the author acknowledges that this creates a financial incentive to make an allegation against a service member:

[H]aving the opportunity to apply for compensation within the military will incentivize more victims to report either formally or informally to the authorities.

Dickerson, supra, at 240-41. Of course, such an incentive is equally present for legitimate and false allegations. The article addresses this issue only briefly and tangentially:

Though the MCB provides compensation as a post-appellate process, some defense attorneys may try to use the process during the cross-examination of a victim at criminal trials, which may occur in courts-martial, state courts, or U.S. district courts, depending on the location of the offense, arguing, essentially, that the possibility of compensation creates perverse incentives for the victim to file a false report. Even so, the defense’s argument would not necessarily be persuasive or decisive. Victims have been able to sue perpetrators in tort after criminal trials for decades and prosecutors have nevertheless been able to obtain convictions.

Dickerson, supra, at 259-60.

There are two additional notable aspects to the article.

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