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. As defense lawyers, we are always trying to stay current on the literature though.
I recently came across an article in the March 2012 publication of the Journal of Forensic Psychology Practice called "Pathways to False Allegations of Sexual Assault." It was written by Jessica Engle and Dr. William O'Donahue from the University of Nevada. The full citation is at the end.
The article - is of course - written by psychologists. So the perspective is from intellectuals considering the mental health aspect of an alleged victim's claim (or defendant's denial). Over the years, lawyers have made it increasingly difficult to obtain the mental health record of an alleged victim. In fact, presently under Military Rule of Evidence 513 it is nearly impossible. The law is crafted in such a way to require defense counsel to know what is in the records before being granted access to the records.
The authors rightly note that in cases involving questions of consent 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. We would note - as defense attorneys - that these pathways can be equally as helpful in understanding a potential defendant's denials.
The authors have 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 sub-pathways to help build the framework.
(a) core discrepancies;
(b) secondary gain.
2) implied consent (and mistake of fact);
(a) whether the alleged victim engaged in behaviors that can plausibly 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;
(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;
(b) frequently inappropriate and provocative;
(c) style of speech that lacks details;
(d) easily influenced; and,
(e) commonly views relationship as more intimate than they really are.
9) psychotic disorders;
10) disassociation; and,
11) intellectual disability
The authors caution 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. These are such emotional cases that offending people is always a danger when discussing even science. For instance, simply because a person has borderline personality disorder does not inherently mean that the allegation is untrue. But, the diagnosis could be a marker that explains why a particular person engages in riskier behaviors (and therefore is at increased risk for assault). Mental health conditions can also lead to distortions of perception that may provide markers for false allegations. In the paper, false allegations are knowingly fabricated claims or allegations based on abnormal information processing.
Studying any topic involving sexual assault is a challenge. The research is going to be subjected to intense scrutiny. Definitional issues can cause significant variability from study to study. In the military, an inappropriate touching on the buttocks through clothing is treated as a sexual assault - equal with a forcible rape. How we categorize data can have a significant impact on our understanding of the problem. Military law enforcement officials are often evaluated based on the the number of investigations they have "founded." There is a built in incentive for law enforcement to found cases unless there is clear evidence that the allegation is false. The data is difficult to analyze.
When evaluating any allegation, we are often looking for discrepancies in the story. The authors write that "core discrepancies" are "central details of the case and, thereby, any variations in these details is considered a strong indication of a false account of events."
In an emotional event, individuals are more likely to recall core aspects of the event rather than peripheral aspects. For example, we would expect a person to remember whether the event was inside or outside, but not necessarily what street name it occurred on. Studies show that the emotionality of the event should actually enhance memories of the core features.
We are also typically looking for secondary gain resulting from the lie. In the military, secondary gain can include avoiding trouble, the benefits of victim status (reassignment), excusing behaviors, and even financial gain.
Implied consent may be the most difficult aspect of sexual assault defense to understand. The law is increasingly moving towards a view that only affirmative consent (spoken yes) is permissible. In other words, we are not going to allow a man to infer that a woman is consenting based on her behaviors. It's an idea that is often inconsistent with jurors personal experiences.
There is also the concept of mistake of fact. These are facts that - if true - would relieve the defendant of liability for the offense. If a reasonable sober person would believe that a woman was consenting, then the accused is not guilty of sexual assault.
Implied consent is most thorny when there is a pre-existing sexual history between two people. It can lead to the thought that they did it before, so they can do it again. It is not a legally sound thought process. This can lead to a woman feeling trapped or coerced into having sex. Consent last week is not consent for next week.
Likewise, consent early in a sexual encounter is not necessarily consent for further sexual contact.
The ambiguity in how we are crafting the rules of consent can potentially lead to "the alleged victim engag[ing] in behaviors that can plausibly be interpreted as providing consent, but the victim herself may not understand or realize this."
There is actually research demonstrating successful implanting of false memories. Some people even can have vivid memories of false events. Suggestive interviewing techniques, misinformation, and excessive encouragement to remember can all lead to false memories.
The Loftus study is particularly interesting. In that study, researches showed people clips of a traffic accident. The participants were then asked to assess the rate of speed of the vehicles. The researches modified the verbs in their questions though. If the researcher asked how fast the cars "smashed into each other" the participants would rate the speed higher than if they asked how fast they "bumped" into each other. Loftus has since conducted over 200 studies with 20,000 participants repeating the study.
Obviously, the consumption of alcohol or drugs - voluntarily or involuntarily - can lead to distortions in memory and information processing. Nearly every jurisdiction has laws stating that a person cannot consent while incapacitated from intoxicants. The danger is that a person under the influence of intoxicants may have deficits in forming memories, like blackouts. They can also confabulate events to fill in the gaps.
Antisocial Personality Disorder
When we're assessing APD, we're looking for past evidence where the person failed to conform to social norms regarding lawful behaviors, confirmed deceit, irritability and aggressiveness, and lack of remorse.
Borderline Personality Disorder
The primary diagnostic criteria that we are looking for is "quickly switching from idealization to devaluation of relationship." Also, extreme feelings of abandonment can lead a person to lie. The rapid of shifting from love to hate can lead a person to construe events as abuse.
Histrionic Personality Disorder
For people with this disorder, we want to examine evidence that a person always has to be the center of attention, that they are often inappropriate and provocative, has a style of speech that lacks in detail, that they are suggestible or easily influenced, and views relationships as more intimate than they really are.
Delirium, Psychotic Disorders, Intellectual Disability, and Dissociation
These are disturbances of consciousness and cognition. Dementia is rare in the military realm.
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
Referral to a command directed mental health evaluation can be an extremely unsettling experience. In our experience, it's not unusual for commands to abuse the command directed mental health process. In that regard, it's important for you to know your rights.
What is the regulation for command directed mental health evaluations? Department of Defense Instruction 6490.04, March 4, 2013 governs "Mental Health Evaluations of Members of the Military Services."
Who can refer a member to a command directed evaluation? "Any commissioned officer who exercises command authority over a Service Member.
What powers does it give to commanders? It empowers "commanders and supervisors who in good faith believe a subordinate Service member may require a mental health evaluation" to "direct an evaluation under this instruction or take other actions consistent" with the regulation.
It authorizes the commander to direct a CDE when:
(1) A member, by actions or words, such as actual, attempted, or threatened violence, intends or is likely to cause serious injury to him or herself or others;
(2) When facts and circumstances indicate that the Service member's intent to cause such injury is likely.
(3) When the commanding officer believes that the Service member may be suffering from a severe mental disorder.
The third situation is where commander's can abuse the regulation.
What is the good faith standard? Good faith means a sincere belief without improper purpose.
Can Command Directed Evaluations be used as reprisal? No. Paragraph 3 (e) of the DoD Instruction states that "no one may refer a Service member" for an evaluation as a reprisal for making a lawful communication described in the instruction.
Can a member be involuntarily hospitalized? The intent of the instruction is to have a psychiatrist or provider with admitting privileges conduct the evaluation. The evaluation issues supposed to be conducted in the least restrictive manner. The doctor could admit the member to the hospital.
What rights does the member have? The member should be notified in writing of the evaluation at least two days before the appointment. The member has the right to contact an attorney and communicate with the IG. After admission to the hospital, the member has the right to contact a friend, chaplain, attorney, or any office of the Inspector General.
Should the member cooperate with the CDE? That is a question that requires a consultation. Within 24 hours, the doctor will provide the commander with a diagnosis, prognosis, treatment plan, and suitability for service recommendation. When the CDE coincides with other legal trouble, a legal consultation is absolutely recommended.
In Part I, we discussed some Department of Justice data on false allegations that I stumbled across at Fort Carson. In Part II, I took at a look at deception and some of the verbal cues that we use to analyze accusations. In this blog, I'll briefly look at nonverbal deception. In the last part, we'll talk about false confessions.
The reason we have to discuss nonverbal deception is because most false allegations are the result of prepared lies. In other words, the accuser has had ample opportunity to formulate the lie. Well-prepared lies can be difficult to dissect.
There are, however, often moments in trial when facial expressions tell more of a story than the witness. In December, I represented a major who was accused of abusive sexual contact. The alleged victim attempted to extort him for $18,000. If he didn't pay her, she threatened to make an allegation of sexual assault. We ran some background searches and discovered that she had purchased a new car around the time of the extortion. Imagine the look of surprise on her face when we cross-examined her. She had no idea we knew. We won the case. That micro-expression of surprise may have been the reason why.
One of the leading researchers on nonverbal deception is Paul Ekman. Along with his team, the developed a system for analyzing spontaneous expressions. He has published several books.
Facial expressions can be hard to suppress. When people are lying, they are often trying hardest to regulate their facial expressions rather than their body movements. Some people are good at masking their expressions. Generally, it is very difficult to simulate spontaneous facial expressions.
As a lawyer cross-examining or interviewing witnesses, however, I want to pay careful attention to startle responses. In other words, the element of surprise is powerful as a questioner. I'm watching very closely whether they are trying to voluntarily control their facial expressions.
The muscles around the eyes are particular difficult to control. Brow raises, squinting, lip stretches, neck muscle activity, and eyes closing are all micro-expressions we want to pay attention to. The eyes may very well be most important. The obicularis oculi is the muscle that tightens the muscles around the eyelids and skin. It is particularly difficult to control during a startle response.
In circumstances where the witness may be experiencing embarrassment, amusement, or shame we are looking for gaze aversion, shifty eyes, and speech disturbances. Downward leaning posture generally.
Smiles are particularly important to watch. Ekman did a fairly famous study where they showed nurses two films - a pleasant film and a film showing burn victims and amputees. The nurses were asked questions about the films. They were told to mask their feelings about the disturbing video.
When the nurses were being truthful about the pleasant video, slow-motion cameras noted natural movements of the obicularis oculi. In other words, genuine smiles had symmetrical tightening of the skin around both eyes. When subject attempted to conceal their emotions, you could still detect traces of the natural emotion.
In that regard, throughout a trial or witness interview we want to be hyper vigilant to a witness's micro-expressions.
In Part I of this blog series, I posted some data from the Department of Justice on false allegations. In Part II, I'll discuss the literature on detecting lies. In Part III, we talk about nonverbal deception and facial expressions. In Part IV, I'll talk about false confessions.
I've spent the better part of the past decade studying deception. It is a critical area of study for the lawyer who makes their living cross-examining witnesses. There is extensive literature on both verbal and non-verbal deception. For a service member accused of crimes, you want a lawyer skillful at detecting deception.
One of the most influential books for me is "Detecting Lies and Deceit - the Psychology of Lying and the Implications for Professional Practice" by Aldert Vrij. The lessons from that book have served me well as a trial lawyer. Here are some of my take aways from that book.
In terms of detecting deception, you need to understand a couple of key principles:
1: Human beings are poor at detecting deception. This is a key point, because military members on juries tend to believe that they are good at detecting deception. They have a high level of confidence in their ability to detect deceit. They can be prone to making quick judgements.
The truth and data shows they are not good at detecting deceit. For that reason, we have to be very skillful at explaining deception and motives to lie. Studies of police officers shows that they detect lies about 57% of the time. Even professionals are poor at detecting deceit.
2: Human beings are good at lying. And they lie frequently. It is estimated that people lie once in every 10 social interactions. Those lies are detected about 18% of the time.
3: Lying is an intentional act.
4: There are three ways to detect a lie. (A) Observing verbal behavior (B) Analyzing speech content and (C) Measuring physiological responses (blood pressure, heart rate, etc).
5: People lie for several broad reasons:
A: To protect themselves from embarrassment or disapproval;
B: To gain an advantage;
C: To avoid punishment (This is an important one for cases involving children. They tend to tell lies to avoid punishment);
D: For another person's benefit; and,
E: For the sake of social relationships.
6: When cross-examining and interviewing witnesses, we're looking for outright lies, exaggerations, and subtle lies. We want to be able to point out these distinctions to panel members.
7: A lie is easier to tell when the speaker has an opportunity to prepare the lie. This is another key lesson for court-martial practice. We want to illustrate to the jury - every opportunity that we get - that the government's witnesses had an opportunity to prepare their lie.
8: We want to observe the liar's personality traits as best we can. Some liars have manipulative personality traits. They do not lie if they are likely to get caught. They can be dominating in their conversation patterns. They may seem relaxed and confident. Some people are sociable or good actors. They are talented at regulating their physical appearance when lying. Other people are adapters. They have a way of trying to make a positive impression on others.
9: We want to pay careful attention to nonverbal behaviors and micro-expressions. This is difficult to do in a trial setting. However, it is immensely valuable when we can point witness micro-expressions out to the jury. There are automatic links between emotions and lying. People sometimes contort their faces in particular ways that we will discuss in Part IV.
10: We want to be aware of the mental processes that the liar is experiencing during the deception. They may be feeling guilt, fear, or excitement.
11: When the lie is complex or the liar is taken by surprise, there may be slower or faster rate of speech, speech errors, changes in pitch, sentence repetition, delays in answering, and gaze aversion to avoid distraction. They may also be very self-conscious about their behaviors and over-regulate their posture and nonverbal presentation. We're looking for shifting movements.
12: Liars in the military are not always taken by surprise. The lie is prepared. In those cases, we may be looking for a faster speech pattern and fewer speech errors.
13: In a court-martial setting, one of the best approaches - in my opinion - is in analyzing the content of the speech. This is a skill that I have really practiced over time. Here are some of the aspects of speech that I am paying close attention to:
A. Negative speech indicating aversion towards people. Things like disparaging statements;
B. Plausible answers. The truth usually makes sense.
C. Irrelevant content. We pay careful attention to people who provide irrelevant information.
D. Overgeneralized statements. Words like always and never. Military members have a tendency to abuse generalized statements.
F. Unusually direct answers.
G. Response length.
These are not all indicators of deception. These are simply aspects of speech that we are paying careful attention to.
14: The details of the offense are critical to analyze. If the details of the offense seem implausible, we want to understand why. People who lie often do not have enough information available to present a coherent story. Sometimes they want to avoid details so they do not later forget them. Often a chronological account is easier to tell than an unstructured account.
15: When I read a victim or client statement from law enforcement, I have a validity checklist:
-Inappropriate language or knowledge
-Susceptibility to suggestion - discussed more in our upcoming blog on false confessions
-Overall thoroughness of the interview
-Motives to lie
-Context of the original report
-Pressure to report
-Inconsistencies with other witnesses and evidence
Often, it is helpful to analyze other aspects of speech. An older book titled "Mannerisms of Speech and Gestures in Everyday Life" by Dr. Sandor Feldman takes a more Freudian approach to analyzing speech. Some of this analysis is helpful to the trial lawyer. Dr. Feldman analyzed common expressions.
For instance, when a person says "by the way", Dr. Feldman theorizes that the speaker is attempting to make the information appear unimportant. Or they are trying to appear as though the remembered the information incidentally.
"Needless to say" can signify ambivalence. A sentence that begins with "honestly" suggests the person is not always honest.
There is rarely a good reason for a person to say "I don't care." It's a common answer when a victim is asked about their opinion on the outcome of a case.
The phrase "of course" can be a clue to possible deception. Imagine a woman who asks her husband if he still loves her. He says, "of course." A simple yes would be more appropriate. The "of course" tells the truth in a veiled way. He loves her, but not like before. When a court-martial witness uses the phrase "of course", I usually want to delve deeper into why they said that.
Words like "only" and "just" can sometimes mask guilt or responsibility.
Those are just a few examples.
The bottom line is that it takes years of experience interviewing hundreds - maybe thousands - of people to become skilled at cross-examination. It requires us to be present in the moment, to know the evidence better than the witness, and to have good judgement in knowing what to ask and what not to ask.
In the next section, we'll discuss non-verbal cues and micro-expressions.
I was recently at Fort Carson, Colorado. I came across a flyer from the Department of Justice titled "False Allegations of Adult Crimes Reference Guide." The flyer has prompted me to write about false allegations and deception. This Part I will provide the data from the Department of Justice. The data apparently came from the FBI Behavioral Analysis Unit and National Center for the Analysis of Violent Crime.
The primary motivations and indicators section below provides a great resource for closing arguments in military court-martials.
The Department of Justice flyer on false allegations provided the following data on false allegations:
-Most likely white (93%)
-Majority are female (73%) male (27%)
-Average age was 30 and the most frequent age was 41
-At the time of the offense, 27% had documented mental illness (depression most common), all female
-At least 43% had a HS education/GED
Marital status by gender:
-Females, married (18%), never married (50%)
-Males, married (89%), never married 30% first marriage, 10% co-habitating/significant relationship
-Full-time employment (60%), part-time (3.3%), student (3%), unemployed (17%)
-No known substance abuse (63%), alcohol only (10%)
-Most common life problem prior to false allegation:
-Marital problems/conflict 63%
-Financial problems 33%
-Mental health issues 23%
-Unemployment/recent loss of job 13%
-27% have made at least one prior false allegation; rape/sexual assault (10%), stalking (10%), physical assault (7%), threats (7%)
-23% have been arrested at least once including charges such as theft/larceny, drugs/narcotics, trespassing, assault/battery
-In 73% of cases, the offender brought the case to the attention of law enforcement: sexual assault (73%), abduction (27%), threats (20%), stalking (17%), attempted murder (10%), extortion (7%), physical assault (7%), hate crime (3%), other (13%).
-Over half (53%) of the cases involved two types of offenses.
-In 73% of cases, there are indications of pre-planning/preparation
-Half of the offenses involved more than one location
-Evidence of physical trauma is reflected in 30% of the cases to include blunt force trauma, edged weapon, ligature strangulation, gunshot wound, burn (fire or chemical)
-Sexual trauma is rare; however, when observed there is trauma to the vaginal cavity, foreign object insertion or breast/nipple lacerations
-Evidence of staging in more than half the cases (60%) to include ransacking, vandalism, threat letters, burglary, use of explosive device, and car jacking
Primary Motivation for the Offenses
-Interpersonal violent allegations (e.g. sexual assault) were primarily motivated by attention/sympathy (50%), whereas interpersonal offenses (e.g. arson, theft) involved other motivations such as providing an alibi (17%), mental illness/depression (13%), profit (13%), and revenge (7%)
-Conduct 2 prong investigation
-Continue logical investigation to determine if there is, in fact, a legitimate offender
-Conduct discrete, parallel investigation to determine/identify the life problems of the false allegation offender
-The interview strategy is depending on the motivation of the offender. An investigator would approach an offender motivated by internal need for attention/sympathy far differently than one motivated by financial gain or revenue
-Emphasize the life problems of the offender
Possible Indicators of False Allegations
-Inconsistent statements by the offender
-Deception on polygraph
-Witness statements that conflict with the offender
-Lack of plausibility in the deception of the reported offense
-Lack of substantiating forensic, physical, and/or medical evidence"
Digital forensic evidence is increasingly becoming a part of military criminal defense. The use of digital evidence is now present in nearly every case that we are involved in. It is also one area where potential clients may have the most questions.
In the military, when you are first suspected of a crime the command will often order you to go to Army CID, NCIS, or OSI. This initial interview usually catches people by surprise. Nearly everyone carries their cell-phone on their person just about 100% of the time.
Law enforcement will often use the initial interview as an opportunity to pressure the suspect into consenting to a search. Or, law enforcement will keep the phone. Individuals who do not have their phone at the initial interview are at an advantage.
In the military, digital forensic evidence from the alleged victim and suspect is often treated differently. With the alleged victim, she (almost always) is given the option of providing her cell-phone data. Sometimes alleged victims will consent to a full digital extraction, sometimes they allow law enforcement to take photos of the phone and text messages, sometimes they refuse and provide screenshots of the evidence they want to provide. Regardless, law enforcement is going to cherry pick the data they want from the alleged victim.
With suspects, the situation is the opposite. Expect law enforcement to attempt a full extraction of any data on any topic they can obtain. Here are some frequently asked questions:
1. Do I have to provide my cell-phone to military law enforcement? The short answer is that we would not recommend ever consenting to a search of your digital world - computers, phones, cameras. If law enforcement wants to seize a phone, the 4th Amendment, US Constitution requires them to obtain a warrant. The process of getting a warrant is really not that difficult. However, most current digital products have very robust encryption packages. It is becoming increasingly difficult for law enforcement to access the data without permission.
The purpose of refusing consent - from a defense lawyers perspective - is to help us retain as much control as possible over how the data is being used.
2. What happens to my phone or computer after law enforcement seizes it? CID, NCIS, and OSI all have special agents trained in data extraction. Most offices locally have software systems that allows them to extract data when they have the password. Most of the offices use company called Cellbrite. If you provide the password, they simply plug the device in and extract the data.
If they do not have the passcode, they may have to send the device off for further testing. There is a tremendous backlog right now. We presently have a case pending where the phone and computer was sent for extraction in September 2016. It took approximately 5 months for law enforcement to start work on extracting the data. The queue is that long.
3. Do I have to provide my passcode? This is a question that is becoming increasingly important. At the moment, the answer is no. Law enforcement will be desperate for your passcode. It makes their job significantly easier. It is a question that is becoming the subject of appellate litigation. We have seen civilian cases where people have been ordered to provide fingerprints. There seems to be some body of law that says that you can be ordered to provide a fingerprint. Military courts have not really provided much guidance yet on the intersection of the 4th Amendment and digital forensics.
There is a powerful argument - from a security standpoint - for turning off biometrics. That is probably the best way to protect your data from all possible sources of capture. It is also probably smart to set your phone to wipe data after a certain number of attempts. This is just common sense prudence to protect you from identify theft and other sources of data theft.
4. How long will they keep my phone? If you give your phone or computer to law enforcement, they will keep it at least until the end of the case. Sometimes that can drag out for over a year if the case goes to trial. If the case is resolved, there is a process for requesting a return of the evidence.
5. How will law enforcement use the data? Prosecutors are looking for the following types of evidence:
- Direct evidence of the suspected offense - text messages, photos, videos, etc.
- Geo-location data. We have seen cases where they attempted to track the location of the phone at particular times.
- Data from applications. Facebook, Snapchat, Instagram, etc.
- Viewing contacts and contact history.
- Email data.
- Web search history.
6. Is the defense able to access the phone? This is the most difficult part of handling digital forensic evidence. Often, the client has personal knowledge of helpful evidence that is contained a digital device. Accessing that helpful information can be a challenge. It usually requires us to request that the government pay for a digital forensic expert. If the client has the ability afford their own, that helps. A simple data extraction is usually a few hundred dollars. Our firm typically uses Atlantic Digital Forensics. Then there is a process for having an image of the phone or the phone itself to the digital forensic company for extraction.
Sometimes, the client may have data located in the cloud. Early in the case we want to examine all sources of data history.
7. Can military law enforcement access iPhone data without the passcode? When a client calls us with this question, we usually want to know the make and model of the phone. We can then talk to an expert on digital forensics and determine the level of difficulty law enforcement will have.
Last year, very famously, the FBI had difficulty hacking into an Apple iPhone 5c, model A1532, running IOS 9. A court nearly ordered Apple to assist the FBI. It made national news until a civilian firm was able to hack into the phone.
Bottom line. If you have a case involving digital forensic information, the smart play is to consult an expert.
Over the next few months, we'll be in court defending three sexual assault cases involving the incapacitation of an alleged sexual assault victim. The military typically charges cases where the alleged victim is under the influence of drugs or alcohol as a sexual assault - rather than forcible rape.
For some time, we noticed a trend where prosecutors were charging all sexual assaults as forcible rape. It was difficult to speculate why - though I generally thought it was to make available increased punishment and to avoid having to pay for expert witnesses to testify about intoxicants and incapacitation. This year, we're already seeing prosecutors return to charging alcohol related sexual assaults rather than forcible rape.
Even going back two years ago, alcohol or drug related sex was not a crime unless the victim was substantially incapable of consenting. As you can see below, the word "substantially" was removed from the statute. There certainly was confusion as to what substantial incapacitation meant. There is still confusion as to when a person is no longer able to consent to a sexual act as a result of drugs or alcohol. That's the purpose of this article.
A sexual assault involving intoxicants in the military is defined as:
"Any person subject to this [Article 120, UCMJ] who –
commits a sexual act upon another person when the other person is incapable of consenting to the sexual act due to –
-impairment by any drug, intoxicant, or other similar substance, and that condition is known or
reasonably should be known by the person; or,
-a mental disease or defect, or physical disability, and that condition is known or reasonably
should be known by that person;
is guilty of sexual assault and shall be punished as a court-martial shall direct."
Nearly every sexual assault case that I've been involved in over the last 10+ years has centered on questions of blackouts or alcohol amnesia. The recent uptick in alcohol related sexual assaults provides an opportunity to write about the intersection of science and military criminal defense.
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 - to put it politely.
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:
1. The alleged victim did not drink enough alcohol to cause memory deficits;
2. The alleged victim is therefore being deceptive about his or her lack of memory; and,
3. 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:
1. Bank records that might indicate how much money was spent on alcohol;
2. Photographs or videos from the night in question;
3. Social media posts from the night in question;
4. The identity of witnesses - especially sober witnesses - who can help reconstruct drinking histories;
5. Locations of establishments that may have security footage.
As a lawyer, 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 up front 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.
There are several online BAC calculators. This is just an estimate. 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).
Blackout 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. A typical series of questions for the doctor might include:
"Doctor, 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?"
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; and,
-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.
Some common motives to lie include:
-To protect a relationship with a husband, boyfriend, or even girlfriend;
-To protect a reputation;
-To get out of trouble;
-Because law enforcement or a victim's advocate told her she was sexually assaulted, despite her initial belief that she was not sexually assaulted;
-Because of a personality disorder;
-Out of retribution;
-Because the full consequences of making the report are not understood;
-To be reassigned;
-To avoid a deployment;
-To obtain financial benefit;
-To obtain medical retirement for PTSD or some other condition;
-Out of confusion and not knowing what actually happened; or
-To obtain child custody or a divorce.
We have great success when we can show that:
-it's unlikely that the victim was in a blackout because she did not drink enough alcohol,
-that even if she was in a blackout her actions were voluntary,
-and that she has a motive to lie.
More resources on our webpage:
Sexual Assault Defense
Here is a typical direct examination of a doctor:
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? Explain
With the presidential transition of power days away, an interesting report from the President's Counsel of Advisors on Science and Technology caught our attention.
Forensic science in the military is widely accepted as reliable. And it's a reputation the forensic sciences do not always deserve. The counsel released their report in September 2016. The President had concerns about whether there were steps that could be taken to improve the forensic sciences.
The counsel was specifically looking at pattern identification evidence - DNA, bite marks, fingerprints, firearms analysis, etc. They wanted to know whether the science was reproducible and reliable. In other words, foundationally valid.
It's amazing that the report did not garner more attention. The PCAST found only single source DNA analysis to be valid in foundation and in application. DNA mixture evidence - when there is DNA from multiple persons - was only foundationally valid. In other words, the science is trustworthy, but the application of science leaves concerns about potential error.
Firearms identification was potentially valid, but surprisingly not enough studies had been done. Footwear analysis completely lacks research. And bite mark evidence was met with significant skepticism.
In the end, it's our hope that juries and judges start taking a more critical view of forensic evidence.
The National District Attorneys Association was, of course, critical of the report.
A CID agent interrogating a Soldier.
Part of the purpose of this blog is to stay abreast of the latest science relevant to military criminal defense.
As trial attorneys, we know that most of the evidence in a criminal trial comes from eye witness testimony. Unfortunately, it's the least reliable form of evidence. New research from The University of Warwick indicates that people will accept that a made-up event from our lives occurred if provided with self-relevant information about the fictitious event.
The study can be found here. A downloadable PDF available for free on the publisher's website is also included below. The full citation is:
Alan Svoboda, Kimberley A. Wade, D. Stephen Lindley, Tanjeem Azad, Deryn Strange, James Ost & Ira E. Hyman (2016): A mega-analysis of memory reports from eight peer-reviewed false memory implantation studies, Memory, DOI: 10.1080/09658211.2016.
In the study, researchers suggested fictitious autobiographical events to over 400 participants. Nearly half believed the events happened. Thirty percent remembered the event and elaborated on it. Over 20 percent accepted it, though they didn't remember it.
Some of the fictitious events included a hot air balloon ride as a kid, playing a prank on a teacher, and spilling a bowl of punch on the mother of a bride at a wedding.
The study has important implications for trial attorneys. The authors identify many ways that false memories can be implanted in a person. At the outset of implanting a false memory, most people deny remembering the event. People will not accept a false memory until it becomes plausible. In a law enforcement setting, there is often a real danger that questioners of an alleged victim will wittingly or unwittingly implant a false memory.
Some examples from the study include:
-Upon demand to remember, some people can create inferences that lead to imagery of events that never occurred. This is especially problematic when they are encouraged to create imagery.
-Self-generated details can lead to more false memories.
-Showing a person photographs can lead to false memories.
-Providing self-relevant information can lead to false memories.
-People are more likely to accept false memories when a coherent narrative is provided.
-People can also remember false emotional states.
According the study, the likelihood of implanting a false memory can often result from the interaction of several of the above tactics.
It's an interesting study for the defense attorney preparing to cross-examine government officials and others who may have tainted an alleged victim's memory.