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Understanding Military Sexual Assault Defense

A Guide to Developing Military Sexual Assault Defense Strategies

Sections

  • Understanding Military Law Enforcement Interrogations for Article 120, UCMJ Offenses
  • False Confessions
  • Our Philosophies for Preparing a Military Sexual Assault Defense
  • Article 32 Preliminary Hearings
  • Basic Defenses
  • False Allegations Under Article 120, UCMJ
  • Motives to Lie Under Article 120, UCMJ
  • How to Evaluate the Credibility and Content of a Complainant's Statement
  • Developing a Theory of the Case in Military Sexual Assault Cases
  • The Mistake of Fact Defense Under Article 120, UCMJ
  • Alcohol and Blackout Cases
  • DNA in Article 120, UCMJ Cases
  • Military Rule of Evidence 412 - MRE 412 The Military Rape Shield Law
  • Considerations for Deciding Whether to Testify
  • Thoughts on the Silence Penalty
  • ​​​​​Summaries of Article 120 Cases Before the Court of Appeals for the Armed Forces
  • Sample Direct Examination of Defense Expert Used to Counter Government Counterintuitive Behaviors Experts
  • Sex Offender Registration
  • Sample Government Counterintuitive Behaviors Direct Examination

The law pertaining to sexual assault has undergone near constant revision since 2006—when Congress first began reorganizing Article 120, UCMJ. The law has changed so much that involving counsel early in the process is extremely important. Additionally, the consequences of sex offender registration are increasingly severe.

Facing charges? Schedule your FREE consultation today! 

Some of the changes over the last few years involve Article 32 Investigations. The new rules have rendered them, in some cases, insignificant as a tool of discovery because the complainant is not likely to be present at the hearing for cross-examination. The prosecutors are going to object to defense counsel's cross-examination and presentation of evidence at every opportunity. The result is that the impact of defense counsel is more important than ever. Nonetheless, the Article 32 Investigation is still an opportunity to attack the government's case.

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UNDERSTANDING THE PROCESS IN ARTICLE 120, UCMJ OFFENSES

How is the investigation initiated?

Either the victim or a mandatory reporter contacts law enforcement. All of the military law enforcement departments (CID, OSI, NCIS, CGIS) have similar regulations. The law is the same for every branch. Internal policies may differ slightly. For example, some branches video record suspect interviews, other branches do not. The policies on video recording change over time depending on leadership.

The CID regulation below is a helpful guide for all of the branches because the basic process is similar. The general steps are as follows:

1. Once law enforcement receives information, a supervisor decides whether CID, OSI, NCIS, or CGIS respectively should accept responsibility for the case.

2. A casefile is initiated and assigned a case number. A preliminary investigation is often conducted to determine whether credible information exists to believe that a crime was committed.

3. If law enforcement determines there is credible information (they often do), then a Report of Investigation is initiated. An ROI number is assigned.

4. A detailed statement is taken from the complainant or alleged victim.

5. Other pertinent witnesses are interviewed.

6. Physical evidence is collected or processed.

7. Termination of the Report of Investigation occurs when probable cause - or lack of - is determined.

8. The supporting Staff Judge Advocate typically opines on whether sufficient evidence exists to prosecute the offense.

How will I (or the suspect) be notified?

In a sexual assault case, the suspect is likely to be interrogated shortly after the complainant is interviewed. The notification may come as a surprise. A senior enlisted member or the commander will probably inform you that you have to go to law enforcement to talk. You do not have to talk.

Pretext phone calls, text messages, or conversations?

An increasingly common tactic by law enforcement is to use pretext communications between the alleged victim and accused to obtain incriminating statements. Be wary of any conversations with an alleged victim.

Here are some clues that it may be a pretext phone call:

  • Complainant sends a text that she or he needs to talk. If the request is urgent, they might be with law enforcement at the time;
  • Be extremely cautions if you are approached in person in a hallway, parking lot, or other isolated situation. The complainant could have a recording device;
  • Conversation starts off with awkward small talk;
  • The conversation abruptly switches to the alleged sexual encounter;
  • The complainant might make comments like: "What happened the other night?", "Why did you have sex with me while I was drunk?", "I don't remember what happened?", "Why did you sexually assault me?";
  • A law enforcement agent could be with the alleged victim possibly prompting their questions;
  • Questions will be repeated and persistent. If you deny the allegations, the complainant will keep asking the same variations of the questions until an incriminating statement is made. They will not easily give up if law enforcement is prompting them;
  • Complainant might be emotional. Resist the temptation to give a generic or broad apology. That apology will get twisted into an apology for sexual assault;

If you are suspicious of the conversation, politely state that you are unable to talk at the time and then consult with a lawyer. Common justifications for not being able to talk might include work, running errands, family obligations, the gym, or other daily tasks. Stay polite and patient because it's probably being recorded

What are my rights?

1. You have the right to remain silent.

2. You have the right to speak to an attorney, whether or not you committed a crime.

3. You have the right to have an attorney by your side when you talk to any investigator or anyone in your chain of command.

4. You have the right to refuse a polygraph examination.

5. You have the right to refuse consenting to searches.

The United States Constitution and Article 31 (b) of the UCMJ requires rights advisements before interrogations or requests for statements. The Court of Appeals for the Armed Forces (C.A.A.F.) has repeatedly recognized that rights advisements have a particular significance in the military because the effect of “superior rank or official position upon one subject to military law, [is such that] the mere asking of a question under [certain] circumstances is the equivalent of a command.” United States v. Harvey, 37 M.J. 143 (C.M.A. 1993).

Under Article 31(b) “No person . . . may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation . . . . "

Rule 305(c) of the Military Rules of Evidence, further clarifies, “A person subject to the code who is required to give warnings under Article 31 may not interrogate or request any statement from an accused or a person suspected of an offense without first: (1) [i]nforming the accused or suspect of the nature of the accusation . . . .” This means that any military member that suspects you of an offense has to advise you of your rights.

The case law reiterates, “The accused must be made aware, however, of the general nature of the allegation. The warning must include the area of suspicion and sufficiently orient the accused toward the circumstances surrounding the event.” United States v. Huelsman, 27 M.J. 511, 513 (A.C.M.R. 1988) (citing United States v. Schultz, 19 U.S.C.M.A. 31, 41 C.M.R. 31 (C.M.A. 1970); United States v. Reynolds, 16 U.S.C.M.A. 403, 37 C.M.R. 23 (C.M.A. 1966)). See also United States v. Pipkin, 58 M.J. 358, 360 (C.A.A.F. 2003) (quoting United States v. Simpson, 54 M.J. 281, 284 (C.A.A.F. 2000)) (holding that the suspect has a right to know the general nature of the allegation).

The Article 31(b) warning requirements can apply to civilian investigators working with the military. Mil. R. Evid. 305(c) applies to civilians (1) “[w]hen the scope and character of the cooperative efforts demonstrate that the two investigations merged into an invisible entity” and (2) “when the civilian investigator acts in furtherance of any military investigation, or in any sense as an instrument of the military[.]” United States v. Payne, 47 M.J. 37, 42 (C.A.A.F. 1997) (citing United States v. Quillen, 27 M.J. 312, 314 (C.M.A. 1988).

What if I previously provided consent to search?

You can revoke a consent to search at any time.

How is my interrogation likely to proceed?

Many interrogations proceed in the following manner:

1. Agents notify your command that they desire to speak with you.

2. Senior enlisted leadership might escort you to law enforcement offices.

3. Because you are escorted to law enforcement offices, most military members believe that you have to stay there. You are free to leave. If you ask agents whether you are free to leave, they should say yes.

4. You might spend a significant amount of time in a waiting room.

5. After a waiting period, they will move you to another room. In that room, they might take your basic biographical data. If they collect fingerprints, DNA, and photographs, then you are likely being titled. You need to consult with a lawyer immediately if that happens.

6. One - maybe two - agents will begin small talk with you to build rapport. They will ask you questions about where you are from, what you like to do, or perhaps generic questions about military life. This is rapport building. They are not your friend.

7. The agent will advise of the offenses for which you are suspected. Pay careful attention. It may not be perfectly specific. It might not even include all of the offenses.

SAMPLE RIGHTS WARNING FORM.

8. The rights warning form does not advise that you are free to leave. Unless you are under arrest, you are free to leave.

9. If you agree to talk, the agent will begin asking questions. If you ask for a lawyer, the interrogation will terminate.

10. If you agree to talk, inquire as to whether the interrogation is being recorded or not.

11. If the agent is seeking a written statement, the interrogation will likely start with a narrative conversation about the allegations before any written statement is taken.

12. Sometimes the agent will allow the accused to sit at a computer and type a narrative statement.

13. Narrative portions of written statements will likely be followed by a question and answer portion. In that section, the agent will sit at the computer and type the questions and answers.

How do I invoke my rights?

We typically advise people to use the following language "Sir or ma'am, I would like to cooperate, but under the circumstances I am invoking my Article 31 and 5th Amendment Rights and am requesting an attorney." If they ask any clarifying questions make certain that you state you are invoking your Article 31 and 5th Amendment Rights and would like to speak to an attorney.

Common interrogation tactics?

There is a section on false confessions below that discusses tactics. This section will be brief.

1. Direct confrontation. Giving the person an opportunity to explain why an offense took place.

2. Shifting blame. The agent will try and trick the accused into false themes or defenses to get the accused to confess. They might propose that the accused drank too much, had some lack of memory, or that they accused believed the complainant was consenting. They might offer alternative reasons for why the offense was committed or give socially acceptable reasons why the offense was committed.

3. Minimizing denials.

4. More aggressive agents might reject denials. Or they might exaggerate or even lie about the evidence they have.

New tactics that we are seeing?

1. We recently have seen two cases where NCIS asked a suspected young Marine to write an apology letter to the complainant during the interrogation. Both Marines wrote the apology letter.

These are old versions of CID and NCIS regulations. It is very difficult to get law enforcement and the government to release these documents. They do not simply release them through the discovery process. Changes over time are incremental. These are still useful guides.

Contact Us for a Sample Revocation of Consent to Search

PHILOSOPHIES FOR PREPARING A MILITARY SEXUAL ASSAULT DEFENSE


Despite the changes in the law, we still have tremendous success in sexual assault cases. We have success because experience has taught this firm to remain committed to a couple of philosophies:

1) Developing a motive to lie by the alleged victim or a reason to misremember. Military juries are educated and analytical by their nature. They frequently consider themselves to be strong judges of character. As such, they will be looking for an explanation from the defense as to why the alleged victim is lying or incorrect about the events in question. Presentation of this evidence cannot be over emphasized. Common motives to lie are discussed below.

2) Identifying potential jurors that are likely to be favorable to our client. We remain committed to communicating with those jurors through the presentation of evidence to ensure we get the votes needed for an acquittal.

3) Working with the client to identify key facts demonstrating innocence. We stay committed to the narrative that we create with the client. In many cases, the alleged victim has claimed that critical events occurred that are uncorroborated. We keep it simple. Military juries want a simple story that makes sense.

4) Aggressively challenge the accuser's story. We use kindness to examine the alleged victim in a way that aggressively challenges her story and always strive to retain the moral high ground for unjustly accused service members.

5) Prepare the accused for the possibility that he may testify. Sometimes the testimony of the accused in a sexual assault case is critical.

Nearly all of the changes in the law have been designed to dilute the rights of the accused, increase the privacy rights of the alleged victim, and broaden the definitions and classes of offenses punishable.

Prosecutors are more aggressive than ever and have more resources than ever. If there is any good news, it is that military juries still have a healthy skepticism about false allegations. In other words, being accused of sexual assault is scary, but these cases can be defensible

More about the decision whether or not to testify is discussed below.

FALSE CONFESSIONS

False confessions do happen. We see news reports all the time of inmates that confessed who are later exonerated by advances in DNA testing. The question is, why do people falsely confess to crimes. In false confession cases, we have experts in psychology that we rely on to explain why the accused falsely confessed.


There are different models of police interrogations. But generally, all interrogations of a suspect are going to use a couple of tactics to compel a suspect to confess:

  • Appealing to the suspect's conscious;
  • Pointing out contradictions in the denial or story;
  • Offer moral justifications or excuses for the offense (this is popular in alcohol-related cases); or,
  • Use of praise and flattery.

We frequently see a nine-step process for interrogations in military sexual assault cases:

  1. Direct confrontation. Advise the suspect that the evidence has led the police to the individual as a suspect. Offer the person an early opportunity to explain why the offense took place.
  2. Try to shift the blame away from the suspect to some other person or set of circumstances that prompted the suspect to commit the crime. That is, develop themes containing reasons that will psychologically justify or excuse the crime. Themes may be developed or changed to find one to which the accused is most responsive. In sexual assault cases, this often involves the agent proposing that alcohol, lack of memory, or mistake of fact contributed to the sex.
  3. Try to minimize the frequency of suspect denials.
  4. At this point, the accused will often give a reason why he or she did not or could not commit the crime. Try to use this to move towards the acknowledgment of what they did.
  5. Reinforce sincerity to ensure that the suspect is receptive.
  6. The suspect will become quieter and listen. Move the theme discussion towards offering alternatives. If the suspect cries at this point, infer guilt.
  7. Pose the "alternative question", giving two choices for what happened; one more socially acceptable than the other. The suspect is expected to choose the easier option but whichever alternative the suspect chooses, guilt is admitted. As stated above, there is always a third option which is to maintain that they did not commit the crime.
  8. Lead the suspect to repeat the admission of guilt in front of witnesses and develop corroborating information to establish the validity of the confession.
  9. Document the suspect's admission or confession and have him or her prepare a recorded statement (audio, video or written).

There are generally three broad factors that can influence whether a person confesses:

  • External Pressure - the coercive nature of the interrogation environment (fear of being locked up if they don't confess);
  • Internal Pressure - feelings of guilt or even relief from confessing; and/or,
  • Perception of Proof - the suspect believing that there is no point in denying it because of the proof.

There are several police tactics that are known to increase the likelihood of a false confession:

  • The agent repeatedly stating - with great confidence - his belief in the suspect's guilt;
  • Concealing information that contradicts the interrogator's premise from the suspect;
  • Lengthy interrogations with emotional intensity;
  • Claims of scientific proof of guilt;
  • Tepeated reminders that the suspect could have memory problems because of blackouts or alcohol;
  • The interrogator demanding that the suspect accept his or her premises and explain the offense;
  • The interrogator inducing fear of consequences in the mind of the suspect.

In the literature,there are at least three personality traits that can increase the likelihood of a false confession:

  • Trust of people in authority;
  • Lack of self-confidence in one's memory; and,
  • Heightened suggestibility.

For more information on false confessions, the Al Nasser University has posted online an important book from the Wiley Series on the Psychology of Crime - "The Psychology of Interrogations and Confessions."


See also, "False Confessions: Causes, Consequences, and Implications."

BASIC DEFENSES TO ARTICLE 120, UCMJ


In every contested sexual assault case, there are basically only four possible defenses. Basic defenses to Article 120, UCMJ are generally limited to:

  • There was no sexual act
  • There was a consensual sexual act
  • The accused mistakenly believed the sexual act was consensual (mistake of fact)
  • Alibi

FALSE ALLEGATIONS OF SEXUAL ASSAULT UNDER ARTICLE 120, UCMJ


We are writing about this topic from the perspective of a defense attorney. Our firm has represented military members accused of sexual assault as well as victims of sexual assault. We do our very best to help those that ask us for help. This includes victims. Representing both accused members and victims requires an understanding of both false allegations of sexual assault and literature related to victimization.

Not all sexual assault allegations are false. But, we know from our practice that there are many examples of false accusations. In 2017, we did an appeal for a soldier that served almost 5 years of a 15-year sentence for rape. After 5 years, the alleged victim - out of guilt - recanted. We eventually got the soldier released from confinement. The alleged victim had an affair. She was in a physically abusive marriage. When her husband confronted her about cheating, she lied and said she was raped to avoid being beaten. The husband pushed the case towards prosecution. False accusations do happen.

There is very little research into false allegations of sexual assault. It is a toxic subject area. In most cases, there is very little evidence to corroborate either side of the story.

In cases where there was a consensual sexual act, it can sometimes be important to understand a woman's sexual motivations for engaging in the sexual act. There is some interesting literature on this point. The Clinical Psychologist Cindy Meston and Evolutionary Psychologist David Buss wrote a book in 2009 about women's motivations for consensual sex.

  • Meston, Cindy M., and David M. Buss. 2009. Why women have sex: understanding sexual motivations from adventure to revenge (and everything in between). New York: Times Books.


Using interviews with women, they identified over 237 "distinct sexual motivations that covered an astonishing variety of psychological nuance." The motivations ranged from boredom to revenge. The book has a chapter on using sex out of a sense of duty, mate poaching, adventure, curiosity, exchange (job, promotion, raise, etc), ego boost, pleasure, and more.

Chapter 10 discusses "The Dark Side." Sexual deception and even violence by men. Men use sexual deception quite often as well (concealing relationships with other women, exaggerating work ambitions, misrepresenting the level of commitment, etc). The book does cover the topic of abuse.

In terms of statistics of false allegations, one study publicly available is "False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases." That study puts the prevalence of false allegations between 2% and 10%. That tends to be the consensus in the literature.

Another one of the most cited articles is in the March 2012 publication of the Journal of Forensic Psychology Practice called "Pathways to False Allegations of Sexual Assault." The full citation is at the end of this blog.

The authors in that study rightly note that there is rarely any unequivocal evidence, which makes discerning the truth challenging. The authors also rightly observed that sometimes there can be pathways to false allegations that result from mental health issues.

The authors proposed 11 forensic psychology pathways (processes) to false allegations of sexual assault that are helpful to defense lawyers. I have taken those pathways and added some considerations to help provide a framework for lawyers.

PSYCHOLOGICAL PATHWAYS TO FALSE ALLEGATIONS

1) lying;
(a) core discrepancies in the narrative;
(b) secondary gain.

2) implied consent (and mistake of fact);
(a) whether the alleged victim engaged in behaviors that can plausibly and reasonably be interpreted as providing consent.

3) false memories;
(a) were suggestive interviewing techniques used;
(b) did government officials push the alleged victim to try and remember information harder; and,
(c) did family members or friends implant subtle incorrect information;

4) intoxication;
(a) evidence of voluntary behaviors and choices;
(b) evidence of high levels of cognitive function; and,
(c) confabulation to fill gaps in memory.

5) antisocial personality disorder;
(a) failures to conform to social norms regarding lawful behaviors;
(b) confirmed deceit or fraud;
(c) irritability and aggressiveness; and,
(d) lack of remorse.

6) borderline personality disorder;
(a) quickly switching from idealization to devaluation of relationship; and,
(b) evidence of extreme feelings of abandonment.

7) histrionic personality disorder;
(a) always has to be the center of attention. Uses sex for attention providing a novel and exciting that are stimulating;
(b) frequently inappropriate and provocative;
(c) style of speech that lacks details;
(d) easily influenced; and,
(e) commonly views the relationship as more intimate than they really are.

8) delirium;
(a) medical related; and,
(b) substance-abuse withdrawal related.

9) psychotic disorders;
(a) schizophrenia.

10) disassociation; and,
(a) childhood trauma;
(b) before or after the allegations; and,
(c) significant errors in recall likely.

11) intellectual disability
(a) often the perpetrator is a peer service user; and,
(b) possible memory issues.

The authors cautioned against a simplistic reading of their research. Part of the purpose of their research was also to call attention to the fact that there is not enough research on the topic.

Jessica Engle BA & William O'Donohue PhD (2012) Pathways to False Allegations of Sexual Assault, Journal of Forensic Psychology Practice, 12:2, 97-123, DOI: 10.1080/15228932.2012.650071


A 2017 study titled "Motives for Filing False Allegations of Rape" (available online) identified 8 motives for filing false claims.

Motives for filing false claims (DE ZUTTER ET AL STUDY):

  • Material gain
  • Alibi
  • Revenge
  • Sympathy / emotional gain
  • Attention
  • Disturbed mental state
  • Relabeling
  • Regret

In this study, to test the validity of the list, a sample of 57 proven false allegations were studied at and provided by the National Unit of the Dutch National Police (NU). In the study, complainants were primarily motivated by emotional gain. Most false allegations were used to cover up other behavior. Some complainants, however, reported more than one motive.

A large proportion, 20% of complainants, said that they did not know why they filed a false allegation. The results confirm the complexity of motivations for filing false allegations.

De Zutter, André & Horselenberg, Robert & Koppen, Peter. (2017). Motives for Filing a False Allegation of Rape. Archives of Sexual Behavior. 47. 10.1007/s10508-017-0951-3.

Literature on Force Fantasies
Psychology Today Article on Rape Fantasies

Shulman, JL and SG Horne. “Guilty or Not? A Path Model of Women’s Forceful Sexual Fantasies,” Journal of Sex Research (2006) 43:368.

Bivona, JM et al. “Women’s Rape Fantasies: An Empirical Evaluation of the Major Explanations,” Archives of Sexual Behavior (2012) 41:1107.

Bivona, JM and. “The Nature of Women’s Rape Fantasies: An Analysis of Prevalence, Frequency, and Contents,” Journal of Sex Research (2009) 46:33.

Critelli, JW and JM Bivona. “Women’s Erotic Rape Fantasies: An Evaluation of Theory and Research,” Journal of Sex Research (2008) 45:57.

Spitzberg, B. “An Analysis of Empirical Estimates of Sexual Aggression Victimization and Perpetration,” Violence and Victims (1999) 14:241.

Strassberg, DS and LK Lokerd,” Force in Women’s Sexual Fantasies,” Archives of Sexual Behavior (1998) 27:403.

MOTIVES TO LIE IN ARTICLE 120, UCMJ CASES

From our own experiences, these are motives to lie that we have seen in military cases. Unlike the studies above, this is anecdotal and based on experience.

Relationships

  • to preserve a relationship
  • to preserve a reputation
  • alibi - e.g. to avoid domestic assault from a jealous significant other

Children and Citizenship

  • to obtain child custody
  • citizenship

Career

  • to avoid getting in trouble
  • for financial gain
  • for any other secondary gain - e.g. PCS orders
  • to obtain the benefits of victim status in the military
  • the consequences for the accused are poorly understood (e.g. the alleged victim thought the accused would only get an Article 15)

Personal Reasons

  • to maintain or create self-identity
  • spite or revenge for a personal reason
  • because of a personality conflict
  • because of a personality disorder or attention-seeking

One of the leading research groups on deception is the Paul Ekman Group. Their site has an excerpt from the book "Telling Lies" with 9 motives for lying from their research.

See also, the Psychology Today article "6 Reasons People Lie When they Don't Need to."

EVALUATING THE CREDIBILITY AND CONTENT OF A COMPLAINANT'S STATEMENT

When evaluating the content of a complainant's report to law enforcement, we assess a number of factors:

General Characteristics of the Complaint

1. Logical structure and internal consistency. Whether the sequence of events makes sense. Whether the statement contains contradictions.

2. Spontaneous production - (if the narrative is overly organized it could suggestive of a false statement).

3. Quantity of details or lack of details.

Specific Content of the Complaint

4. Descriptions of interactions with other individuals. Whether those interactions are corroborated.

5. Reproduction of conversation. Whether those conversations are corroborated.

6. Whether complainant recounts any unexpected complications.

7. Whether the narrative contains any descriptions of events that are of peripheral interest.

8. Whether the statement includes any unusual or superfluous details.

9. Whether there are any accounts of mental states - including the accused.

10. Description of sensory perceptions.

11. Whether any descriptions of intoxicated behavior are consistent with the amount of alcohol consumed.

Motivation Related Content

12. Any narrative corroborating motives to fabricate.

13. Spontaneous corrections.

14. Admitting lack of memory.

15. Raising self-doubt about their own testimony.

16. Self-depreciation

17. Language pardoning the accused.

DEVELOPING A THEORY OF THE CASE IN MILITARY SEXUAL ASSAULT CASES

A case theory is a short, succinct statement of the theme the trial. Once a potential motive to lie is identified, it is useful to use that motive to develop a theory of the case.

Good case theories invoke emotion. They inform the panel that the case is about. In the past, a common defense theory was that the complainant simply regretted the sex. That defense is based on a rape myth that prosecutors are getting better at dispelling. Our firm prefers to focus on core discrepancies in the narrative and the secondary gain from telling the lie.

Some examples of case theories might include:

  • Revenge
  • Exploitation or manipulation for secondary gain
  • Alibi
  • Drunk sex or regrettable consensual sex
  • A lie to save a relationship
  • Reasonable mistake (distorted perception - perception is reality)
  • Attention-seeking or to gain sympathy
  • A lie to obtain sole custody over children

In an Article 120, UMCJ case prosecutor's will likely develop a case-theory that involves concepts of:

  • Power and control of the victim
  • Targets of opportunity to gratify lust and sexual desire.

THE MISTAKE OF FACT DEFENSE UNDER ARTICLE 120, UCMJ

The mistake of fact defense is found in Rule for Courts-Martial 916.

The best explanation comes from the Army Judge's Benchbook - instruction 5-11-2. These are the jury instructions on mistake of fact that most military juries receive in all branches:

5-11-2:

The evidence has raised the issue of (ignorance) (mistake) on the part of the accused concerning ( state the asserted ignorance or mistake) in relation to the offenses.

The accused is not guilty of the offense if:

(1) (he) (she) ((did not know) (mistakenly believed)) that ( state the asserted ignorance or mistake) and

(2) if such (ignorance) (belief) on (his) (her) part was reasonable.

To be reasonable the (ignorance) (belief) must have been based on information, or lack of it, which would indicate to a reasonable person that __________

(Additionally, the (ignorance) (mistake) cannot be based on a negligent failure to discover the true facts.)

(Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar circumstances.

You should consider the accused's (age) (education) (experience) (__________) along with the other evidence on this issue, (including, but not limited to ( here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides )).

The burden is on the prosecution to establish the accused's guilt. If you are convinced beyond a reasonable doubt that, at the time of the charged offense(s), the accused was not (ignorant of the fact) (under the mistaken belief) that ( state the asserted ignorance or mistake), the defense of (ignorance) (mistake) does not exist. Even if you conclude that the accused was (ignorant of the fact) (under the mistaken belief) that ( state the asserted ignorance or mistake), if you are convinced beyond a reasonable doubt that, at the time of the charged offense(s), the accused's (ignorance) (mistake) was unreasonable, the defense of (ignorance) (mistake) does not exist.

There has been some evidence concerning the accused's state of intoxication at the time of the alleged offense. On the question of whether the accused's (ignorance) (belief) was reasonable, you may not consider the accused's intoxication, if any, because a reasonable (ignorance) (belief) is one that an ordinary, prudent, sober adult would have under the circumstances of this case. Voluntary intoxication does not permit what would be an unreasonable (ignorance) (belief) in the mind of a sober person to be considered reasonable because the person is intoxicated.

ALCOHOL AND BLACKOUT MILITARY SEXUAL ASSAULT CASES

Under the new Manual for Courts-Martial, the elements the government has to prove in an alcohol-related sexual assault case are:

(1) That (state the time and place alleged), the accused committed (a) sexual act(s) upon (state the name of the alleged victim) by (state the alleged sexual act);

(2) That the accused did so when (state the name of the alleged victim) was incapable of consenting to the sexual act(s) due to (impairment by a drug, intoxicant, or other similar substance) (a mental disease or defect, or physical disability); and

(3) That the accused knew or reasonably should have known (state the name of the alleged victim) was incapable of consenting to the sexual act(s) due to (impairment by drug, intoxicant, or other similar substance) (a mental disease or defect, or physical disability)

The typical military sexual assault fact-pattern includes a victim who claims a lack of memory related to the sexual act. They will nearly always remember the act of penetration. That's an element of the offense. Their memories related to other aspects of offense can be lacking.

The inconsistencies in many sexual assault victims' memories instantly raises a question as to whether enough alcohol or drugs were consumed to cause memory deficiencies.

The thought process is that:

  • The alleged victim did not drink enough alcohol to cause memory deficits
  • The alleged victim is, therefore, being deceptive about his or her lack of memory
  • Therefore, the alleged victim cannot be trusted


Reliable evidence as to alcohol consumption is sometimes difficult to obtain. If you are in the military and charged with sexual assault, your lawyer is going to want to try and reconstruct the timeline and history of drinking on the night in question.

You can help your lawyer by obtaining evidence like:

  • Bank records that might indicate how much money was spent on alcohol
  • Photographs or videos from the night in question
  • Social media posts from the night in question
  • The identity of witnesses - especially sober witnesses - who can help reconstruct drinking histories
  • Locations of establishments that may have security footage

Once we are able to estimate how much alcohol was consumed in a period of time, we'll probably run a simple blood alcohol content calculation. The reason we care about upfront BAC estimates is because experts will often say that blackout events can be expected at BAC concentrations upwards of 0.15. So if the victim's alcohol consumption puts them at lower than 0.15, I'm immediately skeptical as to any memory deficits. That's not to say the person is lying. We're simply going to investigate further.

Eventually, we'll want to obtain the services of a doctor or expert qualified to testify about the effects of alcohol on memory.

BAC calculations based on breathalyzers or drinking estimates are imperfect. They are based on arithmetic extrapolation. The machine takes a reading. The reading is then converted into a number with a high correlative value to blood samples. The generally accepted conversion factor is 2.1. That factor may not apply to every individual.

To understand how alcohol affects memory, you first need a model of how memory works. There are different models. It's not terribly important to understand. One says that memories are formed in stages ranging from sensory formation, to short term memory, and then long term. There's another model that concludes that the ability to form long term memories depends on how long the information is stored in short term memory.

Regardless of the model, we all seem to agree that alcohol interferes with our ability to form long-term memories. As alcohol consumption increases, so does impairment. Large amounts of alcohol can cause fragmentary or complete memory deficits. Otherwise known as blackouts and alcohol-induced amnesia.

The mechanism of how these impairments occur is not completely understood. The basic model says that alcohol disrupts the hippocampus (the part of the brain central in forming memories).

Blackouts are really misunderstood. It's important for the lawyer and expert to craft a good direct examination that helps the jury understand the science. A blackout is an event where a person can voluntarily participate in an event, but cannot remember it. Some studies have put intoxicated individuals in driving simulators. They were able to drive, but could not remember aspects of the drive.

This is "anterograde" amnesia. They can't form new memories, but it does not erase previously formed memories. The key, however, is that they can engage in these tasks voluntarily.

Typical Questions for a Doctor about Blackouts

A typical series of questions for the doctor might include:

  • Direct Examination
  • Doctor where are you currently employed?
  • Were you ever on active duty in any of the services?
  • Please outline your educational and clinical experience?
  • Do you hold any active state medical licenses?
  • Are you board certified in any particular aspects of medical practice?
  • Can you please tell the members the nature of forensic psychiatry?
  • Do you hold any academic titles?
  • Are you a member of any national or international professional organizations?
  • Have you been or are you currently an officer in any those organizations?
  • Have you ever been given awards for your professional achievements?
  • Have you published any scientific papers or book chapters related to psychiatry or forensic psychiatry? Have you given lectures at scientific meetings?
  • Have you ever been qualified as an expert in military courts martial? How many times?
  • Have you ever NOT been recognized by the court as an expert witness?
  • Do you always work for the defense?
  • How is it decided which team you are assigned to?
  • Doctor, what education and clinical training have you received with regard to the effects of alcohol on human behavior, thought processes, and memory?
  • Have you ever had any clinical duties specifically related to alcohol use?
  • Are the effects of alcohol consumption well accepted within the medical community?
  • Are they described in medical textbooks as well as in scientific reports?
  • Of the cases you have testified in, roughly what percentage have involved the use of alcohol, either by the accused or by witnesses in the case?
  • Request that the doctor be accepted as an expert in forensic psychiatry and an expert in the effects of alcohol behavior, thought processes, and memory.
  • Doctor, will you please outline the materials that you have reviewed in preparing for this case? And you have heard all of the testimony presented at trial?
  • Can you outline the first effects on people after they begin to consume alcohol? [disninhibition – impairment in judgment, impulsive, not weigh the future consequences of one’s actions]
  • Disinhibition – would you say that in that state someone would be more prone to do or say things that they would otherwise not do or say if not under the effects of alcohol?
  • What are some examples of things that people do as a consequence of disinhibition due to the effects of alcohol?
  • When people do these things – are they doing them voluntarily?
  • Do they have the capacity to decide whether or not to do those things?
  • Is it common for people who engage in activities while intoxicated to be embarrassed about those acts later?
  • What happens in terms of thinking and behavior if someone continues to drink alcohol?
  • How would they appear to others?
  • If a person continues to drink can it have an effect on level of consciousness?
  • We have head the term passing out – what is that from your professional perspective?
  • How does it differ from simply being asleep?
  • Doctor, what does the term “blacking out” mean?
  • How commonly does it occur?
  • How do individuals who are in a black out appear to others?
  • Could other individuals know whether someone is in a blackout state or not?
  • So when a person is in a black out state, does it mean that they cannot make decisions about what to do or not to do?
  • Do they have the capacity to decide to do some things and not others?
  • What are some examples things people do while in black out states?
  • Can they subsequently have regrets and remorse?
  • How would their emotional response appear after realizing what they may have consented to when intoxicated appear compared to the emotional response of someone who experienced a traumatic event to which they had not consented?
  • When individuals engage in behaviors, but have no memory of major components of such behaviors, how do they make sense of it?
  • Can individuals who have been in a blackout firmly believe and state with conviction that the circumstances of the evening were different than what they actually were?
  • When a person clears from being in a blackout and has only partial memories of what actually occurred, does their memory get clearer and more specific with the passage of time?
  • With the passage of time, how do the memories from a truly remembered traumatic event compare with those from a reconstructed memory?
  • Did you see anything in your review of the case file that indicates that the alleged victim was in a blackout during portions of the evening prior to the alleged charges?

Blackout Factors

Although blackouts usually are caused by heavy drinking, there are other factors that we want to look at.

Common factors that can cause a rapid rise in BAC include:

  • History of blackouts
  • Lack of food consumption
  • Rate of alcohol consumption

Scientific studies put blackout thresholds at between .14 and .20 BAC. (See the Goodwin and Ryback studies). I usually go with .15.

If our reconstruction of the alleged victim's drinking history is below that BAC threshold, we're really going to continue examining motivations to lie. I'm always careful to caveat that not all victims are lying. Some are telling the truth. It's important as defense attorneys, however for us to conduct or own investigation and examination of the evidence.

DNA IN ARTICLE 120, UCMJ CASES

More often than not, DNA is not a major factor in military sexual assault defenses. In most cases, the accused has made a statement to law enforcement admitting that a sex act occurred. In those cases, we are dealing with questions of consent.

It is still important, however, for counsel to understand DNA. In a case where DNA was found, but the accused denies committing the offense, there are basically only four explanations.

Possible Innocent Explanations for the Presence of DNA Includes

  • False positive (mislabeling samples, cross-contamination, transference)
  • Kinship (the DNA is from a relative)
  • Coincidence (an unrelated person with a similar profile)
  • DNA is present for innocent reasons (the suspect lives at the crime scene)
  • Investigator or analyst misconduct.

MILITARY RULE OF EVIDENCE 412 (MRE 412) - THE MILITARY RAPE SHIELD LAW

Mil. R. Evid. 412 limits the extent to which an accused in a sexual assault case can introduce evidence regarding the alleged victim’s prior sexual behavior.

Sometimes MRE 412 can be critical to presenting a motive to lie or misremember It is important for counsel to understand how to apply the rule. The rule carves out three exceptions.

Under Mil. R. Evid. 412 (b)(1), the following evidence is admissible:

  • Evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence
  • Evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent...
  • Evidence the exclusion of which would violate the constitutional rights of the accused

In analyzing admissibility, the military judge must first determine whether the evidence is relevant under Mil. R. Evid. 401, and then apply the balancing test under Mil. R. Evid. 412 (c)(3).

Under Mil. R. Evid. 412 (b)(1)(C), the accused has a right to present evidence that is relevant, material, and favorable to his defense. United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004). In applying the rule, the military judge is not asked to determine whether the preferred evidence is true, it is for the members to weigh the evidence and determine its veracity. Id.

In determining whether evidence is material, the military judge looks at 'the importance of the issue for which the evidence was offered in relation to the other issues in the case; the extent to which this issue is in dispute; and the nature of the other evidence in the case pertaining to this issue. Banker, 60 M.J at 222 (quoting United States v. Colon-Angueira, 16 M.J. 20, 26 (C.M.A. 1983)). Under the rule, the term favorable is synonymous with “vital.” Id.

Relevance of Extramarital Relationships (Lying to Protect a Relationship)

Evidence of an extramarital relationship can be relevant, material, and favorable to the defense theory of the case when it shows that the alleged victim would lie to protect the relationship. See generally, United States v. Williams, 37 M.J. 352 (C.M.A. 1993).

Evidence may also be constitutionally required when the alleged victim has a motive to testify falsely to explain to her boyfriend why she was with another individual. United States v. Sanchez, 44 M.J. 174, 179 (C.A.A.F. 1996).

In a prosecution for rape and sodomy, evidence of an prior extramarital affair of the alleged victim, including her husband’s reaction to it, had a direct and substantial link to the victim’s credibility, namely a motive to protect her marriage. United States v. Ellerbrock, 70 M.J. 314.

Appellant, who was charged with rape, was entitled to cross-examine the victim, his wife, about her relationship with another man and about her phone call to that man immediately after the underlying rape incident, where appellant wanted to establish that the relationship with the man was a motive for the victim to fabricate the rape allegation and the proposed line of questioning did not involve allegations of sexual behavior that would implicate the exclusionary rule of MRE 412; cross-examination of this man may have established a motive for the victim to fabricate her allegation of rape, and the military judge erred in excluding this cross-examination. United States v. Roberts, 69 M.J. 23

Even assuming that evidence that the victim was previously involved in consensual sexual relations with an enlisted member was relevant in the prosecution of appellant for sexual misconduct with the victim, the confrontation clause did not entitle him to cross-examine the victim about that prior relationship; although the victim’s credibility was in dispute, knowledge of the exact nature of her indiscretion in relation to the other issues in the case was not important where the military judge allowed appellant to present a fairly precise and plausible theory of bias, i.e., that the victim lied to preserve a secret which if revealed could have an adverse impact on her military career, including possibly disciplinary action under the UCMJ; while the victim’s credibility was in contention, it is unclear why the lurid nuances of her sexual past would have added much to appellant’s extant theory of fabrication. United States v. Smith, 68 M.J. 445.

Previous False Accusations of Sexual Assault

Evidence of an alleged victim's prior accusation of sexual assault is only admissible if the prior accusation is shown to be false. It can also be admissible under M.R.E. 404 (b) as modus operandi, motive, or character for truthfulness evidence.United States v. Erikson, 76 M.J. 231.

Lying to Protect a Reputation

The prosecution opened the door to cross-examination of the victim with respect to a prior complaint of sexual assault that the defense contended was fabricated to protect her reputation, where the prosecution introduced evidence of the victim’s prior complaint to bolster her credibility with respect to the reasons for her delayed reporting of the charged offense, thereby benefiting the prosecution. United States v. Savala, 70 M.J. 70.

Procedure for Admissibility under Banker

United States v. Banker, 60 MJ 216

MRE 412, the rape shield evidence rule precluding admission of evidence of the sexual history of sexual assault victims, was intended to safeguard the alleged victim against the invasion of privacy and potential embarrassment that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact-finding process; by affording victims protection in most instances, the rule encourages victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders; MRE 412 was intended to protect victims of sexual offenses from the degrading and embarrassing disclosure of intimate details of their private lives while preserving the constitutional rights of the accused to present a defense.

The purpose of the MRE 412 rape shield law is to protect alleged victims of sexual offenses from undue examination and cross-examination of their sexual history; MRE 412 is a rule of exclusion; MRE 412 is broader in its reach than its federal counterpart; under MRE 412, not only is evidence of the alleged victim’s sexual propensity generally inadmissible, evidence offered to prove an alleged victim engaged in other sexual behavior is also generally excluded.

In order to overcome the exclusionary purpose of MRE 412, an accused must demonstrate why the general prohibition in MRE 412 should be lifted to admit evidence of the sexual behavior of the victim. The rule requires a closed hearing to consider the admission of the evidence; among other things, the victim must be afforded a reasonable opportunity to attend and be heard at this closed hearing.

Based on the evidence presented at the closed hearing held under MRE 412, the military judge applies a two-part process of review to determine if the evidence is admissible; first, pursuant to MRE 401, the judge must determine whether the evidence is relevant; evidence is relevant if it has any tendency to make the existence of any fact more probable or less probable than it would be without the evidence; where the military judge determines that evidence is relevant, the judge employs a second analytic step by conducting a balancing test to determine whether the probative value of such evidence outweighs the danger of unfair prejudice; the accused has a right to put on testimony relevant to his theory of defense; however, the right to present relevant testimony is not without limitation; the right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.

Although a two-part relevance-balance analysis is applicable to all three of the enumerated exceptions to MRE 412, evidence offered under the constitutionally required exception is subject to distinct analysis; while the relevancy portion of this test is the same as that employed for the other two exceptions of the rule, if the evidence is relevant, the military judge must then decide if the evidence offered under the constitutionally required exception is material and favorable to the accused’s defense, and thus whether it is necessary; in determining whether evidence is material, the military judge looks at the importance of the issue for which the evidence was offered in relation to the other issues in this case, the extent to which this issue is in dispute, and the nature of the other evidence in the case pertaining to this issue; after determining whether the evidence offered by the accused is relevant and material, the judge employs the MRE 412 balancing test in determining whether the evidence is favorable to the accused’s defense; while the term favorable may not lend itself to a specific definition, this Court believes that based on Supreme Court precedent and the Court’s own rulings in this area, the term is synonymous with vital.

Although the MRE 412 balancing test bears resemblance to the MRE 403 balancing test, the two tests are distinct. Under the MRE 403 balancing test, a presumption of admissibility exists since the burden is on the opponent to show why the evidence is inadmissible; MRE 403 is a rule of inclusion. In contrast, MRE 412 is a rule of exclusion; the burden of admissibility shifts to the proponent of the evidence to demonstrate why the evidence is admissible. Under MRE 412, the military judge must consider not only the MRE 403 factors such as confusion of the issues, misleading the members, undue delay, waste of time, needless presentation of cumulative evidence, but also prejudice to the victim’s legitimate privacy interests.

MRE 412 does not wholly supplant MRE 403 since the military judge may exclude evidence on MRE 403 grounds even if that evidence would otherwise be admissible under MRE 412.

In applying MRE 412, the judge is not asked to determine if the proffered evidence is true. It is for the members to weigh the evidence and determine its veracity. While evidence of a motive to fabricate an accusation is generally constitutionally required to be admitted, the alleged motive must itself be articulated to the military judge in order for him to properly assess the threshold requirement of relevance.

THE DECISION WHETHER OR NOT TO TESTIFY IN ARTICLE 120, UMCJ CASES

By far, the toughest decision is whether or not the client will testify. In military courts-martial, we discuss this decision early in the case with the client.

We use the following talking points:

  • We are going to plan for the client to testify. The decision is a game-time decision, however. I believe military juries want to hear from the client. We explain to the client up-front that we are aggressive about having my clients testify. You cannot wait until the last minute to prepare to testify. So we start early and often. It's still a game-time decision though.
  • We are going to prepare the client regularly for cross-examination. Preparing a client for cross-examination is one of the best ways to identify weaknesses in the defense case.
  • The actual decision will be made at trial after seeing the government's case.
  • The decision will be based on a cost-benefit analysis incorporating the following time-tested factors:
    a - We never call a witness - including the client - unless we have to call them to win. Is there some fact that we can only present to the jury through the client?

    b - Has my client given any previous statements that are demonstrably false that will be exploited by the government? This is a major reason why it is better to remain silent with law enforcement.

    c - Can I get my client's story out through other witnesses?

    d - How did the alleged victim perform at trial?

    e - Do I sense that the jury has an expectation that the client will testify? This is often the case in he said - she said cases, cases involving kids, sexual assault cases, and cases with high-ranking clients.

    f - Does the client want to testify?

    g - How well is the client prepared? Does the client have any anxiety or other performance issues that affect their ability to appear credible in front of the jury?

    h - Are there any additional allegations that could be exposed to the jury through cross-examination that outweigh the value of the client's testimony?

    i - Does the client have a prior criminal record that the jury might learn about? This factor is outweighed if there are parts of my client's story that only he can testify to.

PREPARING FOR CROSS-EXAMINATION IN A MILITARY SEXUAL ASSAULT CASE

Prosecutor Strategies for Cross-Examination

1. Attack the accused

a. Planning of the offense

b. Awareness of or exploitation of victim vulnerabilities

c. Lack of remorse

d. Changes in attitude before complaint

2. Highlight similar offenses or allegations of sexual assault or harassment

3. Focus on provable facts

a. Pretext phone calls

b. DNA

c. Admissions to law enforcement

4. Obtain concessions consistent with victim testimony

a. Admission that sex occurred at a time in place

i. Admission that accused wanted to have sex

ii. Admission that the accused prepared to have sex

iii. Admission that the accused intended to get her alone

iv. Admissions that the victim said no

a. How many times did she say no?

b. Question that manner in which the accused believed that she said yes.

c. Admissions related to intoxication levels

d. Corroboration of other witness testimony

e. Questions about rape myths

5. Levels of intoxication

6. Whether victim was unconscious

THOUGHTS ON THE SILENCE PENALTY

"The Silence Penalty", by Jeffrey Bellini, looked at raw data comparing cases where defendants did and did not testify. Professor Bellin - of The William and Mary Law School - analyzes the results.

The data is absolutely fascinating:

  • Approximately half of criminal defendants testify.
  • Only 40% of defendants later exonerated by DNA evidence testified.
  • Many defendants chose not to testify out of fear that the jury would learn about prior records.
  • Concerns about juries learning of prior convictions are legitimate. Juries statistically tend to convict in cases with prior convictions. Over 90% of cases are resolved with guilty pleas. In the military, I would say the number is closer to 70%.
  • In cases with no prior record, the conviction rate was about 41% when the defendant testified. The rate was about 70% when they did not testify.

My belief is that the conviction rate is lower in the military when the defendant testifies. Most military clients are screened for good character when they join the service. Military clients generally make for good witnesses.

The article suggests that even disclosure of a prior record can outweigh the penalty of silence. According to a public poll in 2002, 50% of respondents believed that a person who invokes their right not to testify are probably guilty.

People simply don't understand why we have a right to remain silent.

Sometimes when I believe the jury expects the client to testify, I explain to them in my opening statement why there is a right to remain silent. Part of my opening statement goes something like this:

"Members of the panel, some of you may expect the accused to testify. We haven't decided whether he will yet. It's an agonizing decision. You must understand why you have the right to remain silent. The government has all the power and resources. We have none. Some of you might expect an innocent man to want to testify. You would expect him to shout his innocence from the mountain tops. Others might suspect that a person would say anything to save their life, to include lying. There is no way for me to know what you're thinking. For that reason, we place the burden of proof squarely on the government to prove their case beyond a reasonable doubt."

SUMMARIES OF IMPORTANT ARTICLE 120, UCMJ CASES BEFORE THE COURT OF APPEALS FOR THE ARMED FORCES

2017 (October Term)

United States v. Bailey, 77 M.J. 11 - A sexual assault charged under Article 120(b)(3) requires that the victim be incapable of consenting to the sexual act due to impairment by any intoxicant. A person can be awake and conscious and still be incapable of consenting).

United States v. Armstrong, 77 M.J. 465 - In this case, assault consummated by a battery was not a lesser included offense of abusive sexual contact by causing bodily harm where the elements of the former offense were not necessarily included in the latter offense and the specification at issue did not allege facts sufficient to state all of the elements of both offenses; assault consummated by a battery requires bodily harm that was done with unlawful force or violence while abusive sexual contact by bodily harm does not.

2015 (September Term)

United States v. Riggins, 75 M.J. 78 - Appellant was charged with two specifications of sexual assault and three specifications of abusive sexual contact under Article 120, UCMJ, by placing the alleged victim in fear that, through the use or abuse of military position, rank, or authority, he would affect her military career.

The military judge convicted appellant of assault consummated by a battery under Article 128, UCMJ, as a lesser included offense of the sexual assault and abusive sexual contact offenses and found that although the alleged victim was not placed in fear of appellant affecting her military career, as charged, she instead was pressured in an unrelenting manner by a service member of superior rank into having sex.

Assault consummated by a battery was not a lesser included offense of the charged offenses. First, the Article 120, UCMJ, offenses with which appellant was originally charged did not require the government to prove a lack of consent, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did. Second, the original specifications did not include an element requiring that the bodily harm be done with unlawful force or violence, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did. Third, appellant did not receive fair notice of what offense and under what legal theory he was tried and ultimately convicted; as such, appellant’s conviction for assault consummated by a battery violated his constitutional rights to notice and to not be convicted of a crime that is not a lesser included offense of the offenses with which he was charged.

SAMPLE GOVERNMENT DIRECT EXAMINATION ON COUNTERINTUITIVE BEHAVIORS EXPERT QUESTIONS

Expert testimony cannot be used solely to bolster the credibility of the government’s fact-witnesses by mirroring their version of events; and a military judge must distinguish between an expert witness whose testimony about behaviors of sexual assault victims that are subject to widely held misconceptions will be helpful to the trier of fact, and an expert witness whose testimony will simply mirror the specific facts of the case and serve only to bolster the credibility of a crucial fact witness. United States v. Flesher, 73 M.J. 303 (C.A.A.F. 2014).

That is what the law states about expert witnesses. The unfortunate reality is that the government is often permitted to use experts on counter-intuitive behaviors to explain or dispel rape myths. It is very important for counsel to be prepared to cross-examine these experts. The effect of the expert testimony is often to bolster the credibility of the alleged victim - though the law states that is an impermissible use.

This is a sample of an actual government direct examination of a well-known counter-intuitive behaviors expert. She is quite notorious for testifying for the government. A sample cross-examination is intentionally not provided. Rather than a full transcript, here are the bullet points.

Qualifications

  • Claims to have treated hundreds of victims of interpersonal violence.
  • Will claim experience with Individual or group therapy for treatment recommendations. Has testified on impact of trauma in civilian or sentencing cases. Assisting in preparing victims for court proceedings. Treats and evaluates offenders since 80s. Has a program that treats offenders. Thousands of violent offenders she's treated.
  • Most of her testimony is court appointed to determine whether a violent sexual predator. Over 50 courts-martial. Mostly testified for the government. Has been a consultant for the defense but never testified.
  • Has been declared an expert in victim dynamics, offender behavior and dynamics, rehabilitative potential and recidivism, clinical psychology. General psychological issues and diagnosis.
  • Prosecutor will offer her as an expert in sexual assault victim behaviors and victim offender dynamics.
Review of the Case File
  • She typically does not interview witnesses or discuss charges. Does not review file or reports. Blind testimony.
  • Will claim her job is to educate to dispel myths or misinformation.
Background on Counterintuitive Victim Behavior
  • Claims to be familiar with counterintuitive victim behavior. Its not a clinical term. It's a commonplace to refer to behaviors that run counter to our expectations. Based on rape myths and misperceptions and how victims respond to trauma.
  • What are some of those behaviors? Expectations that we think victims should act is to physically resist or fight, report immediately, show anger, not want any contact with offender, immediately understand that it was rape, report to authorities right away or seek legal action, crying for help or attempting to escape as soon as it presents itself.
Decision to Report Offense to Law Enforcement
  • Issues impacting decision. Those decisions are faulty ones. Affecting those choices - socialization to aggressions, sexuality, or privacy. Confusion or shame. Cultural issues regarding sexuality - including religion. Maybe a previous history of abuse affecting perception. Victims may have internal issues that affect the decision. External. Trust in services, Access to services, perception of offenders influence in community, level of attachment to offender, excuse making, thinking it's an aberration. Threats from offender, sympathy, apology. Being a provider.
  • Pre-existing relationship may make them continue contact with the offender. Attachment and love is primary.
  • Victim may go back because of necessity. Contact may be dictated by the situation. They may go back to get answers about what happened.
  • Most influential factor for future contact is the relationship with the offender.
  • What influences decision to report. First thing is what we mean by reporting. To an official it's done rarely. Often reporting may go to a loved one, friend, sister, in an effort to stop the abuse or understand what has happened. Reporting to law enforcement would make them purposely or accidently report. May be forced official disclosure. May be that the situation is deteriorating. The offender is getting worse. Other attempts to manage abuse are ineffective. May be motivated to protect other people.
  • Hypothetical using facts of case likely. Expert will use same factors.
  • Disbelief and confusion about what happened. Not see loved one as abuser. They see it as an aberration - caused by drinking, or stress, or jealousy. An issue labeling event. If committed to relationship with hopes and dreams. There may be financial issues involved with expectations. Hope it can be worked through.
  • How do periods of episodic abuse affect decision to go forward. Staying is reinforced by positive times. It's easy to leave a relationship 100 percent positive. Using example of slot machine as intermittent reinforcement. Presence of external factor like drinking contributes to belief that if he stops drinking the behaviors will drink.
  • Victims who question whether they have a mental disorder. Almost all think there decision to stay, allow, or provoke can cause depression and affect sense of self. Very shameful to be a victim and isolating. Especially if you have been successful in life. The offender can influence reactions by blaming, provoking, or suggesting it was their fault. Offender might torture them with the silent treatment. Offender can disrupt sense of self and reality.
  • Victim can feel closer to abuser. They can mistake relief for pleasure when they have to turn to abuser for comfort. Trauma bonding.


Here is another sample direct examination from prosecutor training materials:

Q. Based on your training and experience, are there common misperceptions about situations of adult sexual violence?

Q. Will you identify prevailing myths or misperceptions concerning adult sexual violence?

A. Rape is committed by strangers. A rape victim will offer utmost physical resistance. A rape victim will recall every detail perfectly. Rape results in visible physical injuries. Rape victims will report it immediately. There is a high incidence of false reports.

Q. What are some of the nonintuitive ways that victim's may respond to sexual assault?

A. Delayed report. Piecemeal or ongoing disclosure. Seemingly inconsistent statements. Non-sequential reporting of events. Minimization of the events or recantation. Lies about some aspects of the events. Anger. Flat affect. Poor coping with drugs, alcohol, or promiscuity. Nervous laughing. Isolation.

Q. How does trauma play a part of a victim's reactions?

A. Trauma affects the chemistry in one’s brain. When someone is in danger, or thinks that are in danger, a series of innate reactions occurs, which prompts the person to either fight, or flee or freeze. These reactions are generated by a set of chemicals which are released as a result of the stress of the trauma. In cases where there are “normal” amounts of stress, a person is not debilitated by the chemical reactions. However, when there is extreme stress (as there is when there is a sexual assault occurring) the amount of the chemical that is released can both damage the brain and inhibit memory functions.

Unlike memories which are non traumatic, and are stored in a logical and verbal fashion, traumatic memories are stored as senses and emotions. Because of this, a person would have trouble reasoning about the traumatic experience, or verbally repeating it, but would recall smells, feelings, images, sounds and tastes.. These memories would tend to be retrieved in pieces, including body memories. The memories can lead to a person shutting down when talking about the assault. And talking about the assault can trigger overwhelming feelings such that the person experiences flashbacks and panic attacks which cause the body to physically respond as if the dangerous situation was again upon them).

SAMPLE DIRECT EXAMINATION OF DEFENSE EXPERT USED TO COUNTER GOVERNMENT EXPERT ON COUNTER-INTUITIVE BEHAVIORS


DIRECT EXAMINATION

Questions by the civilian defense counsel:

Q. Dr. G give the judge a quick rundown of your military and educational history.

A. Sure. Your Honor, military-wise, I retired as a Navy 0-6 in October of 2007 with 30 years in. Undergraduate degree in Zoology from the University of Michigan; 6 years on active duty with Nuclear Propulsion Program; medical school at Uniformed Services University in Bethesda; internship -- rotating internship in medicine, neurology, and psychiatry and other specialties at Bethesda; 3 years psychiatry residency at Bethesda; 2 years at Orlando as Chief of Service; and from '93 to 2007, Faculty at Uniformed Services University; and ended up as a full professor of psychiatry there. I also completed a clinical research fellowship from '93 until '94.

And I'm a research consultant to the Rand Corporation for its recent Rand Workplace Sexual Relations Survey.

Q. Dr. G, how many times have you been qualified as an expert in a military court-martial?

A. I've been appointed for probably about 180 cases and probably testified in 130, 140.

CDC: Judge, we would ask that you recognize Dr. G as an expert in forensic psychiatry for the purposes of this motion?

ATC: No objection, Your Honor.

Q. Dr. G, do you know Dr. V?

A. I've worked in cases where she was involved.

Q. So you've heard her testify?

A. I have.

Q. You've heard her testify as a blind expert?

A. I did.

Q. Okay. Dr. G, what is your concern with regards to the methodology that Dr. V uses in formulating her testimony?

A. Well, the information comes from a number of different types of studies that are done, many of which were done simply for the purposes of understanding sort of the sociology and psychology of the way people understand sexual assault

Some of them were done by, for example, the Department of Justice; or the things that we're working on at Rand to determine prevalence rates in a general population. Some of the studies deal with so-called rape myths. Those would be the college survey studies where a very limited set of questions would be asked, and people would rate their attitudes toward those particular questions. All of the survey studies -- and really most of the work is done in survey studies, but I'll talk about the exceptions after a bit, have different problems with the methodology. For example, at Rand what we're looking at -- you know, we sent off a very detailed study this time which was much crisper than the 2012 study. The 2012 study kind of conflated sexual harassment, sexual misconduct with rapes. So you couldn't actually separate out, for example, what were penetration crimes, what were non-penetration crimes, what were attempts.

CDC: And are you talking about the survey that is frequently cited in the military with regards to the prevalence of sexual assault -- frequently cited in the media with regards to prevalence of sexual assaults in the military?

A. Yes. But even the way the media reports, it doesn't accurately reflect some of the precision of what that study does in terms of breaking it into different categories so that it might appear that those are all rapes when, in fact, some of those were other aspects of sexual behavior.

Q. And what is the relevance of that study as it relates to concerns about Dr. V's methodologies?

A. Well, I mean even that study, which we've gone to great lengths to try to make as accurate as possible, suffers from the problems of most survey studies. One of those is, as you're trying to allude to, selection bias. That people who don't have an interest in the topic do not decide to participate in the study. So you get an over representation of people who have an interest in that subject. So it may be an over representation of people who were actually assaulted or it may be an over representation of people who want to magnify the problem of sexual assault.

So the first case they might answer honestly, and the second case they might exaggerate their answers to bring more light to the perceived problem.

Q. And is that a problem that is simply endemic in that previous military study or is your concern with all survey-type studies?

A. Well, all survey studies suffer from that to one degree or another. So one of the things we're doing -- and I'm actually meeting with the research team next week -- week after next. We're trying to look at verification of some of the rates that were reported. For example, if we have let's say 27,000 people who reported that they were sexually assaulted, by the time you extrapolate that out; and of those, let's say 10 percent say that they reported to formal authorities, so 2,700. If we find out that, for example, only 2,000 people actually reported to the authorities, when 2,700 people on the survey are telling us that they reported to the authorities -- and again we're talking extrapolated numbers going out -- what that tells us is that we have a biased survey, and we need to correct to match what the SAPRO office is actually collecting on reports that are being filed as restricted or unrestricted reports. So there's that type of a problem with the surveys.

There also isn't much detail in those surveys. When you conduct large scale surveys, the more questions you ask, the lower your response rate because people only have a tolerance for so many minutes of taking a survey. So we can ask basic questions like, you5 know, "Were you assaulted? Did you know the assailant? Did you report it? Did you not report it? Did you report it within 24 hours? Did you report it later than 24 hours?" You know, "What are your demographics? What's your gender? What's your age bracket? What's your racial makeup? What rank are you?" So we can break it down into basic demographics and the basic crime and some very basic information about whether they reported it. But it doesn't get into details of, you know, why didn't you report it? We might ask some basic questions about why didn't you report it but not any combination of factors that would give you any direct insight into a particular case.

So again these surveys are done to educate policymakers. They're done to provide general education to the scientific
community, but they're never intended to be applied in a judicial setting.

Q. In addition to -- you heard Dr. V testify and you've heard her testify previously that there are other -- there's other data that she relies upon besides survey studies. What is your concern with any of the other data that she relies upon?

A. Well, you know, they're often -- you know, you can call them different things. But you can call them case series studies, and you could call them focus group studies. You could call them, you know, court-directed studies of individuals. But again, you could have individuals who are over reporting, under reporting, exaggerating, minimizing what the involvement is; but again none of those studies get into the degree of detail that a court will see during the course of the gathering of evidence for the court or the presentation of evidence for the court.

So there is no study of any type that says, you know, this factor was present, not present. This factor was present, not present. This factor was present, not present. You come up with these sort of anecdotal collections of factors, but there's no way of applying those in any type of a predictive fashion that becomes useful to the members in terms of knowing whether something is more or less likely to have happened.

Q. Which brings me to my next point, Doctor. You're answering it a lot better than I asked it. But when we talked to Dr. V last night, you remember that she provided us with a number of factors that may be present as to why one does or does not stay in an abusive relationship, correct?

A. Correct.

Q. What is your problem with that methodology? What is your concern?

A. Well, perhaps the easiest way of explaining that is to provide a contrast and that would be the sort of research that we did at the university in returning veterans with combat injuries. So we would apply, you know, well-validated scales on PTSD and depression for example. And they would be done with direct clinical interviews with scales that basically are shown to be probably about 95 percent valid, based on a large number of clinical scales that have been, you know, applied in that fashion. Then we would examine the demographics of the individual. "What rank were you? What gender were you? What age were you? How many months of combat deployment did you have? How many actual firefights, you know, within brackets were you actually involved with? You know, what were the natures of your injuries?" And then we apply all of that data all of those data into a logistical-regression-analysis formula, so I can end up making determinations of which factors are predictive of PTSD in are turning veteran, which factors are predictive of depression? And I could say, for example that, you know, non-Caucasians are at a 1.5-odds ratio of getting PTSD than Caucasians are, meaning that they 3 have a greater risk as a function of being non-Caucasian. Women have a 1.8-odds ratio of having PTSD. People with more combat exposures have greater ratios. People with -- who are married, have a greater propensity toward PTSD.

And so you can look at each factor and apply a risk factor for what does that factor mean about whether this individual is more or less likely to actually have PTSD.

Q. And how does that differ from the factors that Dr. V gave us last night?

A. There were no ratings. There were no odds ratios or relative-risk ratios to any of those multiple factors. So they're very much subjective to interpretation. I guess the other problem is the purpose. I mean, many of these studies were done for the purposes of educating law enforcement for example, investigators, prosecutors, in not immediately dismissing a case because it didn't make sense to them.

To the extent that an alleged, you know, complaining witness can explain every aspect of their behavior, step by step by step, the question is: What does this add to an explanation that's already been provided to the court in great detail for each episode.

Q. You and I discussed whether the presence or absence of any of these or all of these factors increases or decreases the likelihood that abuse occurred. What is your answer to that question?

A. It isn't helpful.

Q. Why is it not helpful?

A. Well, first off, the studies that -- I mean the factors she talks about -- I think she mentioned this -- are: If you know that an abuse has occurred, whether these factors increase or decrease the likelihood of someone staying or leaving. So you're starting off with presumption that there actually is an abusive relationship to begin with, which is the matter before the court. Not whether somebody left but it's whether the abuse occurred or not. So the staying in or the not staying in, whether you leave in 6 months or whether you leave at a year really doesn't answer the question of whether there is abuse or not. So it's not helpful in that fashion.

And, as I mentioned, there's no particular risk ratio for each of those elements, each of those factors.

Q. And when you talk about the lack of a weighted average, what is a weighted average?

A. Well, weighted average would be much like the logistical regression thing, that this -- this factor imparts, you know, percent of the choice to leave. This factor imparts percent of the choice to leave. This factor imparts percent. You know, how do you put those together. It's just a different way at looking at the8 printout from a logistic regression.

Q. And from your understanding are any of those weighted factors weighted averages rather, factored into Dr. V testimony?

A. Not from what we heard.

Q. Doctor, you also recall Dr. V talking to us about key triggers in leaving. And I believe that some of them were that the victim feels safer, that the offender crossed the line, that there was an escalation, that they have social support. Do you remember that from last night?

A. Yes. In some ways it's kind of the reciprocal of the factors for staying.

Q. Would you agree with me that the best testimony as to whether somebody felt safer is that individual them self?

A. I think they would have the only true knowledge of what their mental state was at any particular point in time.

Q. Thank you, Doctor. That's all the questions I have.

SEX OFFENDER REGISTRATION FOR MILITARY MEMBERS

Every service member facing sex related charges has questions about sex offender registration. The Adam Walsh Child Protection and Safety Act of 2006 created a national sex offender registration system called the Sex Offender Registration and Notification Act (SORNA). Each of the 50 states, the District of Columbia, U.S. territories, and recognized Indian tribes had to comply with the act.

It is a federal crime to knowingly fail to register in the jurisdiction that you reside, are employed, or attend school. Military law has undergone so many changes, that many people have legitimate questions as to whether their charges require registration. Military defense lawyers often return to the default answer of "check with a lawyer in your state."

Unfortunately, the law was well-intentioned, but the politicians cast a wide-net. Many service members facing minor charges find themselves facing possible sex offender registration.

Generally, Department of Defense Instruction 1325.07, Appendix 4 to Enclosure 2 contains the list of registrable military offenses. The law, again, has undergone significant changes over time and consultation is still advisable if you have registration questions.

Additionally, many states have Romeo and Juliet statutes that are intended to unnecessarily require young men to register in cases involving consensual acts with other young people under the statute. Some of those statutes may require specific findings of fact from the Military Judge. It is helpful to have an attorney experienced in handling cases where the client may eventually reside in a state with a Romeo and Juliet type statute.

Contact us at (800) 355-1095 today for more information.
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