MILITARY SEXUAL ASSAULT LAWYER

Despite the changes in the law, we still have tremendous success in defending military 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.

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

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.
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• 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.

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

Literature on Force 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.

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.

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.
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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 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:

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.

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."

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.

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).

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 (757) 401-6365 today for more information.