Argument Preview: How bad is it when the prosecution invokes the Sexual Harassment/Assault Response and Prevention (SHARP) program, in United States v. Bodoh
CAAF will hear oral argument in the Army case of United States v. Bodoh, No. 18-0201/AR (CAAFlog case page), on Wednesday, November 7, 2018, at 9 a.m. (earlier than the normal 9:30). The court granted review of a single issue:
Whether the military judge plainly erred by allowing the trial counsel to misstate the law and argue that the panel should base its verdict on SHARP training
Private (E-2) Bodoh was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of sexual assault and one specification of assault consummated by a battery. He was sentenced to confinement for five years, reduction to E-1, forfeiture of $1,546.80 per month for 60 months, and a bad-conduct discharge.
Bodoh’s convictions involve sexual acts with the civilian wife of another soldier, at the home of the other soldier, while all three of them (plus a fourth person) abused alcohol and cold medicine. During voir dire the prosecution asked the members questions that referenced the Army’s Sexual Harassment/Assault Response and Prevention (SHARP) program. The questions involved the effect of the SHARP program and whether the members could be impartial despite receiving SHARP program training. The voir dire questions did not draw an objection, a comment from the military judge, or a challenge to any member.
Bodoh testified in his own defense. He admitted that sexual acts occurred, but he claimed that they were consensual. During pretrial questioning by law enforcement, however, Bodoh did not admit to the sexual acts, and at trial his defense counsel asked him to explain that earlier omission. Bodoh responded that he was “very frightened when they told me that [the alleged victim] pulled the SHARP defense.” Gov’t Div. Br. at 13 (quoting record).
Once Bodoh mentioned the SHARP program, the prosecution ran with it. On cross-examination the trial counsel asked numerous questions about Bodoh’s understanding of the meaning of consent based on SHARP program training he had received, eventually drawing objections from the defense that the military judge sustained. Later, during closing arguments, the trial counsel repeatedly referenced the SHARP program when arguing that there was no consent, that the alleged victim was vulnerable and incapable of consenting (due to the alcohol and cold medicine), and that her behavior during and after the sexual acts did not support Bodoh’s claim of consent. In particular, the trial counsel argued that the SHARP program demonstrated that the defense theory of consent was based on myths:
Also she’s fearful with everything he’s done and never having any consequences, never anyone doing anything to him, no one, the command, no one doing anything to him. She simply didn’t fight back. She froze. Everyone would wish she would have fought back. Everyone would wish she would have yelled and screamed. And those myths that [defense counsel] said aren’t that common anymore, that’s all that [defense counsel] cross examined her on. That’s all your Soldiers learn in the SHARP program every day about those myths. It’s not that common.
Appp. Br. at 10-11 (quoting record). Bodoh’s defense counsel did not object.
Yesterday CAAF granted review in this Army case.
No. 18-0201/AR. U.S. v. Anthony M. Bodoh. CCA 20150218. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE MILITARY JUDGE PLAINLY ERRED BY ALLOWING THE TRIAL COUNSEL TO MISSTATE THE LAW AND ARGUE THAT THE PANEL SHOULD BASE ITS VERDICT ON SHARP TRAINING.
Briefs will be filed under Rule 25.
SHARP is the Army’s Sexual Harassment/Assault Response and Prevention program.
The CCA’s opinion is available here but it does not address this issue.