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
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
The Navy has released its courts-martial data for October 2016. Here is our analysis. We count 29 General and Special courts-martial across the Navy.
Once again, the Navy dealed out a lot of cases - 20 (75%). Another case (21) was a mixed plea. The Sailor was found guilty of the remaining offenses.
The 8 remaining cases were fully contested. Sailors who contested their cases faired better. All of the contested cases involved sex related offenses. It's become nearly impossible to plead guilty to a sex offense. Four cases were full acquittals (50%).
Our analysis is that you are almost always better off contesting a sexual assault case with a jury.
In DC, a midshipman was found not guilty of rape.
In Norfolk, a Petty Officer was found guilty by a jury of sexual harassment and wrongful disposition of property. He received a BCD and 2 months confinement.
A petty officer at Mayport got 8 years from a jury for rape, aggravated assault with a loaded firearm, and patronizing a prostitute.
A lieutenant junior grade in Pensacola was found guilty of rape by a judge. He received a 4 year sentence.
In San Diego, a jury found a master chief not guilty of sexual assault.
A petty officer in Hawaii was found not guilty of sexual assault by a jury.
A jury found a petty officer in Naples not guilty of sexual assault.
In Rota, a chief got 3 months confinement from a panel for abusive sexual contact.
Mr. Conway following a full acquittal at Fort Carson.
It's that time of year where we can look back and evaluate our results in trial for the year. On our results page, we've posted short summaries of all of the courts-martial that Mr. Conway appeared in.
We may be the only firm that provides end of year litigation statistics. We do so with the standard caveat. Every case is unique and different. We do not guarantee outcomes. These are simply metrics to help us evaluate our own skills and help you select counsel.
As we look at our results for the year, some cases are ongoing, so we'll only include cases where charges were - in fact - preferred and completely resolved in 2016. We had several cases where we avoided charges altogether. Those are not included. Generally, we want to evaluate cases where Mr. Conway appeared before a fact finder and called witnesses.
Mr. Conway appeared on record in 22 courts-martial that had charges preferred and went to completion in 2016. Of those 22 cases, 16 (72%) went to a full trial. The remaining 28% were dismissed after or just before pretrial hearings for a variety of reasons (e.g. no evidence, reduced to reprimand, reduced to separation board, resignation, separation in lieu of trial).
In a statistic we're extremely proud of, 9 out of 14 trials (64%) were fully contested and resulted in a full acquittal. That's nearly two out of three contested cases. Four cases (28%) were mixed verdicts. Of the mixed verdicts, only one case resulted in confinement and/or a discharge.
One case was a full conviction for cocaine use (no confinement or discharge).
Only 2 cases (9%) involved a guilty plea. Mr. Conway has a strong bias against taking deals. Only 3 cases (13%) received confinement (3 months, 241 days, 30 days - two of those cases were guilty pleas).
Here is a breakdown of the cases we tracked to completion to get these results:
7 Jan: Navy officer drug case out of Virginia. Not guilty.
14 Jan: Coast Guard maltreatment case out of Virginia. Mixed verdict. The Sailor was retained.
16 Jan: Louisiana National Guard officer case involving conduct unbecoming, false official statement, and travel fraud. We were prepared for trial, but the officer's civilian employment made a resignation highly desirable. We were able to negotiate a resignation with a general discharge.
20 Jan: An Army officer overseas was accused of sexual assault. The divorce was toxic enough that we were able to avoid a court-martial. The command did give the officer a reprimand.
29 Jan: An Army Soldier in South Korea was accused of sexual assault. Mr. Conway appeared in the Article 32 Investigation. The alleged victim actually testified. Mr. Conway obtained a recommendation of no probable cause. The Soldier accepted a chapter for personal reasons and flowing from some fraternization allegations.
10 Feb: An Air Force Technical Sergeant at Moody was accused of sexual assault by his ex-wife. She testified at the Article 32 Investigation. We got the charges dismissed after the Article 32.
2 Mar: An Army officer in DC was accused of assaulting his wife. It was an aggravated assault charge. There wee photos of the injuries and she ran across the street to immediately report the injuries. The officer was found guilty of a lesser included offense. Mr. Conway got a conduct unbecoming charge dismissed. The officer was retained.
23 Mar: An Airman at Barksdale was accused of forcible rape. He was found not guilty.
6 Apr: An Air Force Staff Sergeant at Mountain Home faced 27 charges of sexual assault and assault by his ex-wife. We got 4 charges dismissed. He was found not guilty of the remaining 23.
21 Apr: At Davis-Monthan, a Senior Airman was facing a very challenging charge sheet brought by his ex-wife. There were sexual assault and assault charges. There were also highly incriminating text messages. We beat the sexual assault allegations. There was a mixed verdict to the assault charges. The Airman got 3 months confinement and a BCD.
24 May: An Army Sergeant First Class was accused of sexual assault by a staff sergeant in Germany. He was found not guilty.
8 Jun: A Sailor in New Jersey was caught on tape stealing from the post-exchange. Larceny charges were preferred. Mr. Conway negotiated a separation in lieu of trial.
16 Jun: An Army sergeant in Vincenza, was accused of disrespecting an officer and other allegations involving 3 females. We linked the 3 females together in a conspiracy. The sergeant was found not guilty of everything.
19 Jul: A Marine corporal at Miramar testified positive for a really high amount of cocaine. He was found guilty. He got no confinement and no discharge.
5 Aug: A Marine corporal was facing a court-martial for steroids. We got the charges dismissed and the Marine went to an administrative separation and got a recommended suspended general discharge.
15 Sep: An Army Master Sergeant at Fort Bragg was accused of raping his daughter - among other things. He was found not guilty of everything.
6 Oct: An Army sergeant at Fort Hood was accused of child abuse - among other things. He was found not guilty of everything.
13 Oct: A Marine male lance corporal was accused of abusive sexual contact of 3 male Marines in their sleep. We got a few charges dismissed. Ultimately, we negotiated a time served deal. The Marine also received a discharge.
2 Nov: An Army sergeant at Fort Benning was facing failure to report, falsifying PT scores, and a litany of other charges. He was found not guilty of everything.
10 Nov: Negotiated guilty plea for an officer who falsified documents to receive the bronze star and many other awards. 30 days confinement and a dismissal.
17 Nov: A major at Fort Belvoir was accused of abusive sexual contact by a staff sergeant. He also faced communicating a threat and fraternization charges. He was found not guilty of everything but the fraternization. He received a reprimand from the jury.
15 Dec: An Army captain at Fort Carson faced allegations of abusive sexual contact by a sergeant. He was found not guilty of everything.
Navy Results of Trial for September 2016 - 86% of Cases Guilty Pleas and 50% Acquittal Rate in Contested Sexual Assault Cases
I'm making it a point to publish assessments of the results of trial across branches on a monthly basis.
The Navy publishes it's results here:
Our firm did not try any Navy cases in September. Mr. Conway did win an administrative separation board at Naval Air Station Oceana with a 3-0 finding of no misconduct in a drug case. But, we did not have any Navy Courts-martial.
Bottom line, the Navy is dealing as usual. There were 23 courts-martial Navy wide. Three were contested cases (13%). One contested case resulted in a not guilty verdict. The other 20 cases (86%) were guilty pleas.
Of the three contested cases, two involved sexual assault. A chief got 6 years and an E-5 was acquitted. There was also a guilty finding in a sexual abuse of a child case, but the sentence was 8 months. If you take that case out, there was still a 50% acquittal rate in sexual assault jury trials.
My assessment - continually - is that the results tend to be more favorable when you go to trial. Each case stands alone - it's a case-by-case basis. But, the broader system-wide numbers are still favorable for an accused.
In the Navy District of Washington there were two General Courts-martial and one Special Court.
All three cases were guilty pleas. Two involved child pornography and had sentences at 18 months and 6 years. The other was a larceny case with 45 days confinement.
Navy Region Mid-Atlantic is one of the busier Naval jurisdictions. We have a Norfolk office. They had 4 General Courts-martial. There were two plea agreements - an adultery type case with 89 days confinement and an involuntarily manslaughter case with 42 months confinement. A CPO was found guilty of sexual assault and sentenced to 6 years by a panel. A panel gave a CPO 8 months for sexual abuse of a child and indecent exposure.
In the Navy Region Southeast there was one General Court and one Special Court. In a judge alone General Court-martial, a Sailor was found guilty of sexual assault and given an 18 month sentence. A guilty plea at a Special Court for larceny and false official statement resulted in a 6 month sentence.
Navy Region Northwest had 2 General Courts and 5 Special Courts. Both General Courts were guilty pleas. One General Court was a indecent recording and child pornography case with a 48 month cap. Another involved wrongful wearing of insignia with a 2 month sentence.
All 5 Special Courts were guilty pleas.
Navy Region Southwest had 5 guilty pleas at Special Courts.
In Navy Region Europe a Sailor stood trial for sexual assault at a General Court-martial and a panel found him not guilty.
One purpose of this blog is to comment on trends in military justice. One of the trends I've seen lately is military defense counsel advising clients to waive their right to the Article 32 Investigation - particularly in sexual assault cases.
As a civilian lawyer practicing exclusively military law, I have a unique perspective. I'm doing cases across the world involving every branch of service. I'm interacting - at one point or another - with judge advocates at most installations. I'm seeing the value or the Article 32 Investigation play out against a wider range of situations and decision-makers.
Over the course of the year, I have repeatedly seen risk-averse military counsel advise clients to waive their right to the 32 because they anticipated a guilty plea and/or couldn't find the value in the Article 32 Investigation. Their thought process often accounts for recent changes to the Article 32 Investigation rules. A recent law review article explains those changes. The important changes includes rules that do not require the alleged victim's to testify. Also there has been a shift in philosophy such that the investigation is no longer a discovery tool of the defense. In other words, the defense cannot use the investigation to learn more about the case. Congress wanted to make the hearing simply a probable cause determination.
Regardless of the motivations of Congress, our success post-rule-changes has been very positive. Contesting court-martial charges often works out more favorably than taking a deal. Each case - of course - is different. But, I like the numbers.
Many defense counsel fail to recognize that there is still value in the Article 32 Investigation for the following reasons:
1 - Sometimes alleged victims change their minds last minute and decide to testify. I saw that happen in January of this year. We were able to cross-examine her;
2 - What happens behind the scenes is often more valuable than what is on the record. I have a dedicated period of time to talk to witnesses off-the-record without prostecutors around;
3 - I can often get non-victim witnesses to testify on the record at the hearing. When that happens, their testimony is locked in. If something happens to them and they are unavailable for trial, we have a transcript of their testimony;
4 - We are often able to convince Investigating Officers to recommend dismissing charges or reducing charges; and,
5 - Our track record in cases where Investigating Officers recommend dismissing charges is overwhelmingly favorable.
As a trial attorney, I almost never want to waive a client's rights. To that end, I've come up with guidelines over time to help in that decision - especially when prospective clients call having already received advice to waive the hearing. We don't waive an Article 32 Investigation until answering the following considerations:
1 - Is there legitimate exposure to additional charges at the Article 32 Investigation?
2 - Are there any witnesses at all that we can call that can be locked in for trial?
3 - Are there preexisting good faith negotiations for a favorable deal?
4 - is there a cost-benefit analysis that is unfavorable?
5 - Is there investigation that can be accomplished off-the-record?
Before waiving rights at an Article 32 Investigation, we always example those issues.
Over the last few years, the Manual for Courts-Martial has undergone a series of seemingly never-ending changes. This year's installment of changes has been approved.
For the non-lawyers, changes to the Uniform Code of Military Justice occur through Congressional action. The UCMJ is a statute. The President, however, can enact changes to the Manual for Courts-Martial and Rules for Courts-Martial through Executive Order. Usually, changes to the manual include updates to reflect new case law from the appeals courts or changes to the rules to reflect policy goals (e.g. rules for sexual assault cases).
This year's installment has the following major changes that this firm finds important:
Rule for Court-Martial 307 (c) - Requires Article 134 offenses to include specific notice of the alleged terminal element. This is simply a reflection of recent appellate case law. Article 134 offenses are crimes that are prejudicial to good order and discipline or service discrediting. There was a time - not long ago - where prosecutors did not include either of the elements of prejudice to good order and discipline or service discredit in the charge sheet. It was anybody's guess which element they would try and prove. Now they are required to charge the "terminal element."
Rule for Courts-Martial 307 (c)(4) - This rule provides clarification on the distinctions between unreasonable multiplication, multiplicity, and punishment limitations. See our previous discussions on topic here. The short version is that military prosecutors like to charge crimes as many different ways as they can to enhance the possible punishments. It's borderline dishonest, but there are ways to deal with it.
Rule for Courts-Martial 701 and 703 - This rule requires defense lawyers to request victim interviews through the victim's counsel in sexual assault cases. Bottom line - I rarely talk to victims anymore before trial. Here's why: I have a competitive advantage on cross-examination. I've litigated over 100 trials. By the time, we're in court, the alleged victim has never seen me or spoken to me. She has no idea what to expect. It's a philosophy carved out over a decade of experience. In my early days, I would interview an alleged victim before trial and she would know what to expect and modify her story accordingly. I don't need any practice rounds - but she will.
There are a number of other changes. A copy of the Executive Order is below.
Over the last few years, Article 120 and the law of sexual assault in the military has undergone seemingly never-ending revisions.
One of the biggest challenges has been defining the concept of "incapacitation." Articles 120 (b)(3)(A) and 120 (d) prohibit sexual activity with a person incapable of consenting because of impairment from drugs or alcohol.
Several years ago, it was common for prosecutors to charge sexual assault cases involving alcohol under the incapacitation provisions of the law. Over time, we have seen prosecutors start to favor forcible rape charges rather than sexual assault by incapacitation charges. The thinking seems to be that it's easier and cheaper to allege rape than incapacitation. In an incapacitation case, expert testimony is usually required. That costs money.
Nonetheless, the occasional incapacitation case generates appellate case law. Recently, the United States Navy and Marine Corps Court of Criminal Appeals had the opportunity to address the definition of incapacitation. In United States v. Newlan, No. 201400409 (N.M. Ct. Crim. App. Sep. 13, 2016), a three judge panel looked a the jury instructions in that case.
In Newlan, the Military Judge - Lt Col Francis - had borrowed the definition of impairment from Article 111 (drunken or reckless operation of a vehicle). In Article 111, impairment is any intoxication sufficient to impair the rational and full exercise of the mental or physical faculties.
It seems like the task of defining incapacitation should not be difficult. However, in the law, we have all sorts of differing standards for when a person is incapacitated ranging from driving standards, to capacity to form a will, to capacity to engage in sexual behaviors.
With Newlan and other recent cases, we are starting to see the appellate courts take a more pragmatic approach to defining incapacitation. The court wrote that Article 120 does not prohibit engaging in sexual acts with a person drunk or impaired by alcohol. The law prohibits sexual acts when the person's impairment rises to a level rendering them "incapable" of consenting to a sexual act.
This appellate language is probably a backlash to Department Defense training materials that are teaching the absurd. In every recent incapacitation case this firm has done, potential panel members are asked about their views on alcohol and consent during voir dire. They nearly always respond that they are taught that a person cannot consent to sexual acts if they have had any alcohol at all. They also nearly always disagree with that proposition. Department Defense efforts to train service members on consent are clearly not working. And it is probably because they are teaching concepts that are inconsistent with our every day experiences.
Nevertheless, the Newlan opinion is the latest in a number of recent decisions designed to better define the law of consent and impairment.
On 30 August 2016, Mr. Pristera obtained a full reversal of all charges from the Navy-Marine Corps Court of Criminal Appeals. The Court determined that the military judge improperly instructed the panel with regards to consideration of evidence of one charged offense as proof of a propensity to commit the other charged offense.
Appellant was charged with two specifications of sexual assault, against two alleged victims. The alleged assaults occurred almost a year apart. After the second alleged assault, the alleged victim made a restricted report to the unit sexual assault advocate. Upon hearing the allegations from the alleged victim of the second offense, the sexual assault advocate herself also claimed to have been sexually assaulted by the same person. Both women filed unrestricted reports a month later. Appellant was ultimately convicted of both offenses.
At the trial, the military judge instructed the panel on Military Rule of Evidence 413. That rule, prior to the landmark decision in U.S. v. Hills, allowed for propensity evidence to be considered in similar sexual assault cases. Basically, that means that the government can use evidence of one charged offense to suggest that the accused had a predisposition to commit the other offense. The result is a complicated instruction requiring the panel to distinguish between guilt beyond a reasonable doubt and guilt by a preponderance of the evidence.
While this case was pending appeal, the Court of Appeals for the Armed Forces announced its decision in U.S. v. Hills. In that case, the court held that MRE 413 cannot be applied to a charged sexual offense on the same charge sheet. This landmark decision overturned years of practice in the military justice system.
Based on that decision, Mr. Pristera filed a supplemental brief and assignment of error citing the Hills decision. The Court agreed with Mr. Pristera and overturned the conviction on the basis of an improper instruction and use of MER 413 evidence.
Academics Continue Their Push to Remove Protections for Accused Servicemembers in Sexual Assault Cases
A recent article (see below) presents the position that Military appellate courts should no longer have the authority to decide cases based on factual sufficiency. The article describes in detail the different stance that military courts have as compared to most federal and state courts regarding factual sufficiency. While I disagree with the overall opinion that Military appellate courts should no longer have the authority to review a case of factual sufficiency, the important take away for the Servicemember is that the need for competent and experienced counsel, at the trial, post-trial, and appellate stages, has never been higher. Members of congress and academics continually push for changes in the military justice system, but few of the voices behind the changes have actually observed a recent sexual assault Court-Martial.
I. A Defense Attorney’s Analysis of: Lisa M. Schenck, "Just the Facts Ma’am": How Military Appellate Courts Rely on Factual Sufficiency Review to Overturn Sexual Assault Cases When Victims Are "Incapacitated," 45 Southwestern Law Review 522 (2016).
Appellate review for factual sufficiency is a necessary protection for the military accused. When an appellate court reviews a case for factual sufficiency, the court is taking a fresh look at the facts presented at trial and determining whether a reasonable jury (or “panel” as they are called in Courts-Martial) could have found the appellant guilty beyond a reasonable doubt. Some of the criticisms of this authority highlighted in the article are (1) the appellate court does not have the benefit of observing witness testimony at trial, (2) that almost all federal and state appellate courts do not have this much authority, and (3) this authority essentially enables the appellate court to grant no deference to the military panel and substitute its judgement for that of the factfinder. Certainly, if a military appellate court overturns a conviction for factual (in)sufficiency, the court is substituting their judgement for that of the panel. Such a result, however, is not a bad thing.
The author’s opinion is largely based on cases involving sexual assault convictions by means of incapacitation of an alleged victim. The poorly defined meaning of “incapacitation” is at the heart of the problem. The article qualifies its opinion to remove this authority from the military appellate courts by concurrently arguing that there needs to be a clearly defined definition of “incapacitated.” We could not agree more with this point, but don’t hold your breath. Such a thing is easier said than done.
With all that in mind, the author argues that a military accused no longer needs the added protection of an appellate court’s authority to overturn a case based on factual sufficiency. To support this position, the author highlights, among other things, the improved quality of defense representation and due process afforded in the military system since the inception of the UCMJ in the 1950s, the significant effort to combat unlawful command influence in the military justice system, and the general reliability of a military panel. With more protection in place to ensure that a military accused receives a fair trial, the author argues that our system no longer needs such an unencumbered review by the appellate courts.
Regarding the issue of unlawful command influence and reliability of a panel in sexual assault verdicts, there is no fair comparison to civilian jurisdictions. Even under current military law, it is legal (not unlawful command influence) for a commander to require every Servicemember (and thereby every panel member) to take sexual assault training. There is no civilian equivalent of this. Could you imagine if the governor of your state required every potential juror in the state to take sexual assault training prior to your trial for sexual assault? And then the judge tells you that that despite the sexual assault training they received, you will still receive a fair trial because the judge will instruct them to disregard what they heard in that training? Additional protection at the appellate level would not be such a bad thing in that case.
Absent from the article, and the primary basis of my disagreement with this position, is the fact that military panels, unlike federal and state jurisdictions, are not required to have a unanimous verdict for a finding of guilty. In fact, in many circumstances, the panel only needs a 2/3 majority to convict and can have as few as three members. Most if not all civilian jurisdictions require a unanimous verdict with a set number of jurors. The meaning of this significant deviation from the civilian sector is that a military panel’s verdict is not as representative of the views of the members as is a civilian jury.
I am not arguing that Courts-Martial should require a unanimous verdict from a panel. The needs of the military to ensure minimal disruption to the mission simply could not withstand the immeasurable burden of requiring a unanimous verdict in every case. The increase in “hung juries” and the additional deliberation time per Court-Martial alone would suffocate the military justice system. Rather, I support the position that with a 2/3 guilty verdict from a panel in a felony case, additional appellate court authority to ensure that there was a fair trial, is appropriate.
II. The pendulum has not stopped moving towards the Government.
The military defense community is somewhat a victim of our own success. The single greatest driving force behind military justice reform is the fact that the defense community wins more than the government thinks we should. Our firm in particular has extraordinary success with sexual assault cases.
That success causes the government to attempt to “swing the pendulum” back to their side. They are doing this by changing the law, changing the rules, and reducing the protections that accused Servicmemebrs have. Unfortunately, too many lawmakers rely on the narrow-minded statistics of conviction rates, rather than a more substantive analysis of the strength of the cases the Government choses to bring.
The continued need for protection of the accused is obvious to any observer of the average sexual assault trail. Therein lies the problem. Congressional and academic case analysis is conducted on high profile outliers, not the everyday sexual assault trial.
As congress and the military consider measures to remove/reduce protections afforded to the accused Servicemember, it has never been more important to have qualified and experienced civilian counsel at every stage of representation. If the military appellate courts ever do lose the authority to review a case for factual sufficiency, they only protection will be to make sure the military panel gets the verdict right at the Court-Martial.
It's been a while since I provided an update. Part of the reason is because I've just finished up a lengthy road trip with a number of cases. We continue to have tremendous results in sexual assault and assault related cases. There's a number of reasons for the great results. A favorable outcome can result from good lawyering, a client that testifies well, a great cross-examination, or sometimes the facts of the case are just weak.
Another tool, however, is the victim impact statement or non-prosecution letter. Sometimes the best strategy is to try and prevent the case from ever going to trial. Sometimes the service member is willing to take an administrative discharge. Other times, the alleged victim is willing to write a letter stating that the service member should not be prosecuted.
A non-prosecution letter can go a long way towards heading allegations off without the stress and expense of a trial. Every letter is different - obviously - but here is a short draft letter that is an example of a letter that might be used to help us negotiate with a command.