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EI INCUMBIT
PROBATIO QUI DICIT.

Reviewing the Report of the Fort Hood Independent Review Board Findings

December 22, 2020

Under the direction of the Secretary of the Army, the Fort Hood Independent Review Committee (FHIRC) recently conducted a comprehensive assessment of the “Fort Hood command climate and culture and its impact, if any, on the safety, welfare, and readiness of our soldiers and units.” The committee’s report focuses largely on the Sexual Harassment/Assault Response and Prevention (SHARP) program at Fort Hood.

Below is a summary of some, but not all, of the FHIRC report’s most shocking findings.  Included is the reactions and observations from Joseph L. Jordan, Attorney at Law. As a former Army soldier, Army combat arms officer, and JAG officer now serving as an experienced military defense attorney, Mr. Jordan is highly qualified to review and criticize this report.

Finding 1

The implementation of the SHARP program at Fort Hood has been ineffective, due to a command climate that failed to instill SHARP program core values below the brigade level.

Under section 1.7.1, the FHIRC details interviews with groups of senior noncommissioned officers about their knowledge of and concerns about sexual harassment and assault at Fort Hood. The report states:

“[The Soldiers] saw no problems with sexual harassment or sexual assault at Fort Hood. Many in this group felt that compared to colleges, Fort Hood does a better job taking care of their Soldiers regarding sexual assault and sexual harassment…This group believed the stigma attaches to the accused, even if it is determined that an accusation of sexual harassment or assault is unfounded.”

This is a great point. I’m glad the committee touches on it, but there is no follow-up as to why the NCO’s feel this way. They gloss over the stigma created by potential false accusations. The committee consistently set aside and minimized inconvenient truths that run counter to their overall opinions in this report.

Finding 4

The Fort Hood Criminal Investigation Division (CID) office had various inefficiencies that adversely impacted accomplishment of its mission.

Is the Accused Innocent Until Proven Guilty?

Buried within section 4.5 of the report is a paragraph I find particularly disturbing. It states:

“…a large number of sexual assault cases were lost or dismissed at court martial partially due to investigations that are rote and lack essential evidence.”

The report goes on to say that 75 cases involving sex crime specifications convened from 2018-2020. The prosecution success rate was 22 percent for sexual assault charges, 33 percent for abusive sexual contact, and 11 percent for rape charges.

This finding implies all sexual assault and harassment claims are legitimate—prosecutors simply don’t find enough evidence to support guilty verdicts. Furthermore, during a press conference, a spokeswoman said, “Those of you who have made sexual assault and sexual harassment claims—we hear you, and we believe you.” But the US military justice system doesn’t work like this.

Don’t get me wrong—there are legitimate claims of sexual assault out there, but the idea that any claim should be believed immediately and without evidence ignores the very Constitution service members sign up to protect. Soldiers are afforded the same constitutional protections as other US citizens. This means they are innocent until proven guilty. There’s no SHARP exception to the Constitution—if there is, I missed that class in law school.

Do Agents Struggle to Gather Warrants?

Another part of section 4.5 states:

“…cases that involved search warrants or magistrate orders to obtain evidence were problematic as the inexperienced Agents had difficulty developing and articulating the necessary probable cause.”

I find this very hard to believe. Gathering warrants is a basic investigative function. If the apprentice Agents are having difficulty with this facet, their training needs to be reexamined.

This observation also fails to address the veracity of charge sheets coming from the Office of the Staff Judge Advocate (OSJA). If investigating agents cannot develop and articulate probable cause for warrants, how can the OSJA trial counsel develop a charge sheet? There is no commentary on that in this report.

Finding 5

The mechanics of the Army’s adjudication processes involving sexual assault and sexual harassment degrade confidence in the SHARP program.

Are the Victim and the Accused Treated Fairly?

At first glance, Finding 5 shows concern for the fair treatment of both the victim and the accused. What I find striking is the remainder of the report emphasizes the fair treatment of victims only. It even stops using the term “alleged” when referring to the victim, which implies their claim is automatically true.

Have the Correct Individuals been Fired?

The FHIRC emphasizes the investigative failings of CID, yet the result has been to fire, suspend, and investigate Fort Hood commanders. I find this puzzling. After all, the Command relies on evidence gathered and advice given by CID and the OSJA when deciding whether to charge a case. If there are problems with the investigative process, why is the solution to punish the commanders relying on this information to make informed decisions?

Are Fort Hood Investigations Drawn out Longer Than Necessary?

The committee criticizes the length of investigations at Fort Hood. However, it spends no time discussing the need to process forensic evidence. How long does it take to test and analyze DNA? How many DNA tests are backed up at the US Army Criminal Investigation Laboratory (USACIL)?  DNA processing and analysis is a major contributor to the length of investigations in my experience.

Does the Committee Address Defense Counsel Concerns?

The FHIRC offers no commentary related to specific defense counsel concerns regarding SHARP. This cuts against the objectivity of the report, in my opinion.

Has the SHARP Program been Weaponized?

Section 5.5 addresses the concern that the SHARP program could incentivize false reporting. The report states:

“Soldiers also raised concerns for the subject of a SHARP complaint, fearing that an innocent Soldier may be falsely accused. Soldiers, male and female, frequently shared their belief that the SHARP Program can be weaponized to discredit another Soldier…”

There is no doubt that sexual assault claims have been weaponized! Young service members use “SHARP” as a verb and identify it as a threatening device – “Yeah, they threatened to SHARP me” or “Don’t get on that person’s wrong side, or you’ll get SHARP’ed.”

The report further states:

“Soldiers of all ranks, including some Judge Advocates, identify the ability to obtain an expedited transfer as an enticing incentive that may cause a disgruntled Soldier to fabricate a complaint. However, there are safeguards in place. A Soldier’s O-6 level commander must first conclude that ‘there are reasonable grounds to believe that an offense constituting sexual assault has been committed against the person requesting the transfer or reassignment…’”

“…and the Soldier is not entitled to dictate the location to which they will be transferred or reassigned. This phenomenon appears to be more mythical than factual.”

I find this section of the report very interesting because in my experience (14 years as an attorney in military law and nine years as a private practitioner defending service members) this is not the case. Over 90 percent of my caseload is sexual assault. After taking an objective look and considering the evidentiary standards, I can conclude that many of these sexual assault claims didn’t happen.

To think that the SHARP program hasn’t been weaponized is naïve. These days, sexual assault has become one of the easiest crimes to allege. Victims can make a claim without evidence because they know the system will protect them or even reward them. Here are some of the incentives to claim sexual assault:

  • Victims can make a false accusation in order to request a transfer or reassignment. (The report says soldiers don’t get to pick where they go, but they are allowed to list where they would like to go, and many are granted their request.)
  • Victims get a sexual assault counselor and their own attorney. They also get to bring an entourage of people with them to court.
  • If a victim wins their case, they could be awarded damages up to $40,000 and get to claim military sexual trauma to the VA for a monthly check.

This report is not objective. I have only identified a few of the many issues littered in this report that lack objectivity. It is obvious that Congress is and has been making an overcorrection in the area of investigating and prosecuting sexual assault. No credence has been given to the inconvenient truths regarding the rest of the story. It is not mythical or fantastical that young Service members will make a SHARP complaint for an ulterior motive. I have seen it numerous times and can give numerous examples. I challenge Congress to call me to the House to give testimony about my experiences of Service Members who have been falsely accused of sexual assault.

The report fails to address how the 5 services’ OSJA’s treat Sexual Assault claims. Frankly, if an alleged victim has a claim and is willing to testify, it goes to Court despite the finding of exculpatory evidence. Why? Because the exculpatory evidence is deemed as counter intuitive behavior. In other cases, it’s a he-said-she-said matter with no corroborating evidence to support the sexual assault allegation. Currently, the belief of some SJA’s is “if you don’t know, send it to Court.” They say some cases just need to be decided at courts martial…besides, it gives the young military prosecutors a chance to get some experience.  I can’t tell you how many military lawyers have told me this. This is the ABSOLUTE WRONG ANSWER! Our system is clear You are innocent until proven guilty. If the military prosecutors don’t know, then the case should not even be charged!

This report also fails to mention the collateral damage left in the wake of a sexual assault investigation that is either unfounded or the accused is found Not Guilty. Many of my client’s careers were over the moment the investigation started, regardless of outcome. Some of my clients were up for promotion. The investigation languishes, it takes a while to get to Court and by the time 18-24 months pass by, they lose their opportunity to advance. When a Service Member is found innocent, there is no recourse against a false allegation. I am asked many times if the Service member can sue the false accuser. The answer is always the same…you can’t bleed water from a turnip. Rarely is there a pecuniary interest large enough to motivate a Service Member to seek recourse through a civil lawsuit.

Clearly, there is a lot of work left to do when it comes to proper investigation, charging and prosecution of sexual assault. This report doesn’t even get the issue off the ground.  Until policy and law makers are willing to be objective, investigations are still going to be deficient, and we will continue to have trials against falsely accused. A balancing act must be struck in order for there to be trust in the overall system. Reactionary measures only further the problem and deepen the well of incompetence.

Protect Yourself Against Sexual Assault Accusations

If you are a service member who has come under investigation, don’t wait to seek professional legal counsel! Joseph L. Jordan, Attorney at Law is highly qualified to represent you. Our team has handled even the most complex cases, achieving desirable outcomes for clients stationed worldwide. Call us toll free at 800-580-8034 or 254-221-6411 today to speak directly with Joseph L. Jordan about your case.

 

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