Changes to Military Sexual Assault Rules May Have Big Impact


By: Joseph L. Jordan

When a large defense bill was signed last December, it also included revisions to military sexual assault rules. As these rules are being implemented and used to frame cases of alleged sexual assault in the military, it's becoming clear that big changes may lie ahead. In a recent article from McClatchy DC,these changes are being illustrated in a case that is at once unique and typical.

The case involves rape allegations made by a Navy corpsman against a Hospitalman. Although the case involved alleged extortion from the accuser – who later stepped forward to make the allegations – it involves many of the same elements of military sexual assault cases; colleagues who were friends, a night of partying, alcohol, and contradictions of rape and consensual sex. How the case is proceeding in the Article 32 stage, however, is highlighting the new changes.

Article 32 hearings – which are a type of preliminary hearing – are changing. For one, a new post for a victim's legal counsel was established. Accusers can also remain in the courtroom during witness testimony, which the Navy Corpsman exercised in her case. In December, other Article 32 changes will take effect – accusers will be able to opt out of testifying. If they choose to testify, cross-examination will be more limited.

In this case, the accuser was cross-examined in order to assess her credibility and whether the case should proceed to court-martial. At one point, it was revealed that the accuser repeatedly sent texts about obtaining Ecstasy, despite the fact that she denied illegal drug use while in the military. Contradictions about the alleged bribery were also revealed. During the process, the Navy Cmdr. who oversaw the hearing told the accuser: "I am troubled by your answer. Why should I believe you?"

Supporters believe the changes will protect accusers from being "re-victimized" by questioning that can be explicit, intrusive, and embarrassing. The Article 32 process has been criticized for being harsh on assault survivors, especially by Sen. Claire McCaskill, D-Mo., who helped champion the bill. Still, by limiting defense attorneys from questioning accusers, challenging credibility, and exposing contradictions, the new rules may result in more cases reaching trial, and potentially more acquittals.

Problems with New Article 32 Rules

The new rules were passed by members of Congress who were focused on ending the "epidemic" of military sexual assault. The problem with the new rules begins with its motive. Senator McCaskill, who is a former sex crime prosecutor, thinks like a prosecutor. McCaskill comments that the Article 32 process is "unnecessarily harsh for survivors and that it has become an overly broad tool." The problem with such a mindset is that the Senator, and others who share the same thoughts, is presupposing guilt.

By stating that someone is a survivor, you are making the mental leap that they are a victim. By stating that the complaining witness is in fact a victim, you are presupposing the guilt of the accused. That goes against everything our justice system in America stands for. It is bad enough that the Military Justice system only requires 3/4s of the panel to convict. If they want to restrict the Defense Counsel's access to a complaining witness, then the Juries need to be unanimous. The new rule changes raise a simple question: where has innocent until proven guilty gone? That is the real question in military justice. The more rights that are taken away from defendants, the easier it is to secure convictions. Unfortunately, that is all congress cares about.

Justice, Not Convictions – Understanding Pressure from Congress

Congress is convinced that there is a problem with military sexual assault and asks why there aren't more convictions – which is a troubling approach to this problem. The military justice system is not about convictions. It is about justice. Justice is supposed to be blind. That is clearly not the case when it comes to sexual assault in the military. Congress needs to be looking at the cases individually. Anyone that has litigated multiple cases understands that while the allegations might be similar, the facts are always different.

Congress needs to understand the effect they are having on the military, and how the military reacts. For the issue of sexual assault, the military's answer is to charge every allegation of sexual assault no matter how incredible it is. Sexual assault cases are going to trial that have no business even being charged. In one of my recent cases, the alleged victim stated to investigators that she was raped in the bedroom, but told her husband the assault took place in the living room. The Judge, upon motion of the defense, found my client not guilty of the charge prior to the case going to the jury. That is unprecedented.

If Congress continues to blindly pressure the military to stamp out sexual assault, more cases of this kind will continue to go to trial. The next accused may not be as lucky as to have a counsel who would investigate a case so thoroughly. More importantly, the accused may not have a Judge who has the judgment to grant an acquittal in the clear case that there is no reasonable way that a Jury would find the accused guilty under such contradictory evidence.