Politically-Incorrect Dissent on Rape in the Military

There has been a lot of media attention recently on rape victims and the prevalence of rape in the military.  As some of the individuals retell their stories, it is clear to see that they suffered from a traumatic experience.  However, being in the military myself, and a former military prosecutor no less, I do not share the opinion that there is an “epidemic” in our ranks.  Does sexual assault occur in the military?  Absolutely.  But does it occur at a rate any higher than what you might find on an average college campus or in the public writ large?  No.  And when sexual assault allegations arise, are commanders sweeping them under the proverbial rug?  Certainly not!

One of the major differences in the military justice system versus the state criminal justice system, is that the District Attorneys in the states can evaluate the allegations, and if they decide that the case lacks prosecutorial merit, they can refuse to present the case to a grand jury for an indictment.  Another major difference is if the grand jury says there isn’t enough evidence, the District Attorney can’t go forward.  Neither of these checks and balances are found in the military justice system.

Instead, unit commanders (called Convening Authorities - usually Colonels and higher) decide whether a case should proceed to trial.  For felony-level cases like sexual assault, they must first receive a recommendation from a neutral investigator, but the ultimate decision on whether to go forward with a case rests with the commander.

The neutral investigator (called an Article 32 Investigating Officer) hears the evidence that the government has against the defendant and makes a recommendation to the commander.  This sounds fair so far, but when the investigator recommends NOT going forward on a sexual assault case because of deficiencies in the evidence, all too often the commander is faced with a dilemma: dismiss the charges as recommended or forward the charges to a General Court-Martial.  The easiest decision is to send it forward.

But can you blame them?  What are the commanders supposed to do when the deafening chorus of politicians and news anchors are calling for more accountability for "rapists" in the military?  Does anyone really expect a commander (typically a rising star in the military) to risk their professional future by refusing to send a rape allegation to trial and face being labeled by the media as “hiding rapists” or being “soft on sexual assault?” No way!  They are going to take the easy way out.  The politically palatable way out.  They are going to kick the can down the road to the prosecutor and let him take the case to trial, warts and all, under the guise of letting “the military justice system runs its course.”

Please do not read this to say that I think all sexual assault allegations in the military have no prosecutorial merit.  Many do.  But can we ever expect the commander to make the hard call to dismiss a case when it lacks merit?  Not any more.  And then when the prosecutors do their very best with a case that would have never gone to trial in a state system, we ask: Why can’t you get the conviction?  The prosecutors may possess the trial skills of Perry Mason or Clarence Darrow, but they can’t change the facts of the case, the rules of evidence, or the burden of proof.  These cases are seldom black and white.  And in a Constitutional system that requires proof beyond a reasonable doubt, convictions are (and should be) hard to come by.

With all of this going on (our focus on the victims), what is baffling to me, is that we are forgetting about the accused.  What happened to “innocent until proven guilty?” Congress is asking for more convictions; going so far to change the military sexual assault laws in a shameless effort to secure more convictions, while, the accused is labeled a rapist before even having his day in court.  This is terrible and antithetical to our criminal justice system.  We can’t simply jettison the Constitution when it is politically appealing.

McClatchy put out a pretty good article on this issue last week (LINK).  Of the many the media outlets that have focused on this issue, they are the only one, in my opinion, that has its priorities straight.  Sometimes justice means that a person is convicted of sexual assault.  Sometimes it doesn’t.  But this prejudgment of military defendants (or any defendants) has to stop.  By law, an accused is innocent until a verdict of guilty is returned and no sooner.

Military Sex Crime Conviction May Be Used for Enhancement in Texas

Rushing v. State (Tex.Crim.App. - Oct 5, 2011) - Here's a case that interests me on a couple of levels.  When I was a prosecutor in the Marine Corps, one of the constant questions I received from defense counsel when negotiating a plea on a sex crime case was how, and to what extent, the conviction will affect the service member in his/her home state.  I rarely knew the answer because many of the accused were from different states.  Well, the Texas Court of Criminal Appeals has confirmed that a military conviction for a sex crime, does have collateral consequences in Texas - one of them being that the conviction is able to be used for enhancement purposes in a later prosecution for a separate offense.

In Rushing, the CCA held that a prior sex-offense conviction under the Uniform Code of Military Justice (UCMJ) qualifies as a "conviction under the laws of another state" for enhancement purposes.  Texas Government Code §311.005(7) defines "state" to include any area subject to the legislative authority of the United States.  A UCMJ conviction is deemed to have taken place on United States soil and the defendant's subsequent conviction is properly enhanced under Penal Code §12.42(c)(2)(b)(v) for that conviction.

Military Capital Case Unlikely to Result in an Execution (Even in Texas)

On the fringes of Texas criminal law is the notorious case of Major Nidal Hasan, the Army medical officer and American Muslim that killed 13 people during a shooting rampage at Texas’ Fort Hood in 2009.

CNN reports HERE that the Convening Authority (the Army General that forwarded the charges to court-martial) has decided that this will be a capital case. That the death penalty would be on the table was thought by many to be a foregone conclusion. However, unlike Texas capital cases, the likelihood of the death sentence being executed is a longshot in the military system.

As reported by the Court-Martial Appellate blawg CAAFlog,

Under the current military death penalty system, which President Reagan promulgated in January 1984, there have been 52 known capital courts-martial resulting in 16 adjudged death sentences, for a 30.8% death sentencing rate.

Further, a survey of the 10 death sentences that have been adjudged in the military in past 37 years indicates that the reversal rate on appeal of death sentences in the modern military system is 80% (and none of the death sentences were reinstated when resentencing was authorized.)

The most shocking statistic, especially to Texans like me, is that there has not been a military execution under the modern system, ever. And it does not appear that one is imminent for the existing military death row inmates.

The death penalty may be an option for the Hasan jury and it may indeed be the sentence that is handed down, but if history is our guide, Hasan will spend his remaining days at Leavenworth and there will be no execution.

Cert Grant in Confrontation Case

The Supremes granted cert yesterday in Bullcoming v. New Mexico.  The certified issue is:

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform the laboratory analysis described in the statements.

HERE's a link to the New Mexico Supreme Court opinion.

This case sparks my interest on the military side where drug lab experts often testify about the lab work of other chemists, but any time the Court weighs in on the Confrontation Clause, it has the potential for broad impact.  This is one to watch.

Privacy of Electronic Communications?

With oral argument in City of Ontario v. Quon in the U.S. Supreme Court yesterday, the implications of the 4th Amendment in the digital age has been a widely discussed topic in the blawgosphere lately. 

• WSJ Blog
• Scott Greenfield's Simple Justice
• Volokh Conspiracy
• New York Times (not a blog, but a good link about the Quon case)

For me, I've been more focused on the way in which the Quon decision will affect the military, if at all. 

Currently, the privacy of government computer information and government e-mail messages is a fluid notion.  The general rule for the military is that users of government computers do not enjoy a reasonable expectation of privacy in anything related to that computer.  The military requires that all users sign a detailed information letter which explains that their computer and e-mail may be searched at any time and for any reason, and that the user may be subject to disciplinary action for what is found.  Further, every time a user logs-on to a military copmuter, a banner explaining the lack of privacy is boldly displayed on the screen, requiring the user to hit "enter" before they may gain access (not that anyone actually reads such boiler-plate messages when they log-on, but it's there anyway).

Complications have arisen in the past, however, because military commands engaged in practices which created a reasonable expectation of privacy (at least a subjective one) by adopting unwritten policies requiring search authorizations (warrants) before searching the contents of any computer.  Further, some commands, those on ships in particular, do not have access to civilian compters for their troops and thus, troops must use their government computer to contact family, perform online banking, etc.  Of course, we would hope that our troops would not be engaging in illegal activity while on ship, but in the military, even adultery is a chargeable offense. 

Enter the Quon case.  Quon fell victim to a system which was similar to the military system.  He was issued a texting pager and told (officially) that the pager was not for personal use. He was then, however, issued a limited exception to the general rule by his immediate supervisor, allowing him to send limited personal messages so long as he paid for the overages.  Resonable expectation of privacy?  (Members of the military do not pay for any of thier computer use, so the analysis differs a bit, but Quon could still be instructive.)

Hopefully, our learned Supreme Court will craft a workable rule for such a nuanced and progressive area of consitutional law.  But then again, maybe not:

“I just don’t know how you tell what is reasonable,” Chief Justice John G. Roberts Jr. said. “I suspect it might change with how old people are and how comfortable they are with the technology.”

Either way, I eagerly and anxiously await the Court's opinion. 

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