It is no secret that the law pertaining to sexual assaults has undergone near constant revision since 2006—when Congress first began reorganizing Article 120, UCMJ. Mr. Conway and Mr. Myers have co-authored a textbook on military crimes and defenses that is near publication that includes lengthy discussion on this topic.
The law has changed so much that involving counsel early in the process is extremely important. Additionally, the consequences of sex offender registration are increasingly severe.
Despite the changes in the law, we still have tremendous success in sexual assault cases. We have success because experience has taught this firm to remain committed to a couple of philosophies:
1) Success requires the demonstration of a motive to lie by the alleged victim or a reason to misremember. Military juries are educated and analytical by their nature. They frequently consider themselves to be strong judges of character. As such, they will be looking for an explanation from the defense as to why the alleged victim is lying or incorrect about the events in question. Presentation of this evidence cannot be over emphasized. Common motives to lie are discussed below.
2) We are skillful at identifying potential jurors that are likely to be favorable to our client. We remain committed to communicating with those jurors through the presentation of evidence to ensure we get the votes needed for an acquittal.
3) We work with the client to identify key facts demonstrating innocence. We stay committed to the narrative that we create with the client. In many cases, the alleged victim has claimed that critical events occurred that are uncorroborated. We keep it simple. Military juries want a simple story that makes sense.
4) We aggressively challenge the accuser's story. We use kindness to examine the alleged victim in a way that aggressively challenges her story and always strive to retain the moral high ground for unjustly accused service members.
5) We expertly prepare our client for the possibility that he may testify. Sometimes the testimony of the accused in a sexual assault case is critical.
Nearly all of the changes in the law have been designed to dilute the rights of the accused, increase the privacy rights of the alleged victim, and broaden the definitions and classes of offenses punishable.
Prosecutors are more aggressive than ever and have more resources than ever. If there is any good news, it is that military juries still have a healthy skepticism about false allegations. In other words, being accused of sexual assault is scary, but these cases can be defensible.
Article 32 Pretrial Hearings
Some of most recent changes to the rules have to do with Article 32 Investigations. The new rules have rendered them, in some cases, insignificant as a tool of discovery because the alleged victim is not likely to be present at the hearing for cross-examination. The prosecutors are going to object to defense counsel's cross-examination and presentation of evidence at every opportunity. The result is that the impact of defense counsel is more important than ever. With alleged victims receiving the assistance of Victim's Legal Counsel it is unlikely that defense counsel will have many opportunities to cross-examine the alleged victim before trial. This means that experience is paramount.
Regardless of changes to the law, basic defenses to sexual assault allegations remain unchanged.
For most cases, the defense is either going to be:
There was no sexual act;
There was a sexual act, but it was consensual;
There was a non-consensual sexual act, but the accused mistakenly believed that it was consensual; or,
When looking for counsel in a sexual assault case, remember that scientific evidence and the nature of the victim’s report (immediate report or delayed report) may dictate which defense is most appropriate. Immediate reports are viewed as more credible by military jurors. You will need help in determining which is the appropriate defense.
If you have already made an incriminating statement to law enforcement, don't panic yet. Young male defendant’s can be easily persuaded to make incriminating statements. Cases involving confessions are winnable when defense counsel has the skills to properly cross-examine the law enforcement agents.
For those reasons, very early in the representation, we want to determine which of the above theories to invest our energy during pretrial preparation. We will work very closely with you in analyzing the evidence and different possible strategies.
Inexperienced counsel far too often fail to aggressively investigate the question of consent. Most military sexual assault cases involve a question as to whether alcohol or sleep placed the alleged victim in a mental state where she was unable to consent to sexual activity. Therefore, investigation must focus on her mental state in the hours leading up to the sexual activity. Of course, the history of sexual activity or communication with the accused is also important to the analysis.
Motivations to Lie
Inexperienced counsel also fail to aggressively explore the alleged victim's motivation to lie.
There are many reasons why an alleged victim could lie or embellish allegations. That's not to say all alleged victim's are lying or none are lying, but the science is very controversial at the moment. Nonetheless, we have seen first-hand many reasons to lie or embellish:
-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.
That list is just a few of the examples that we have seen. Those are all potential areas for cross-examination. It also important for counsel to have a firm grasp of the expert witnesses and testimony likely in a sexual assault trial.
Perhaps the most difficult aspect of trying a sexual assault case is in handling the expert testimony. Prosecutors are being trained to use any variety of experts for all sorts of inappropriate purposes. Defense counsel may be faced with cross-examining Sexual Assault coordinators, friends of the alleged victim, doctors, or even family members that profess to be experts on sexual assaults, but are not.
The difficulty defending against government experts was recently illustrated in United States v. Flesher, 73 M.J. 303 (C.A.A.F. 2014). The government indicated that they would use a Sexual Assault Response Coordinator as an expert to testify about counterintuitive behaviors such as that it is supposedly common for sexual assault victims not to fight back. As is the recent trend, the government did not notify the defense of the anticipated expert until they submitted a witness list two weeks before trial. The witness list prompted defense counsel to request a continuance and to request defense expert assistance. Two weeks before trial is awfully late in the process to start requesting experts for the first time. The lesson may very well be to request expert assistance early in the process out of an abundance of caution.
Defense counsel must be prepared to address the subject matter of an expert’s testimony for relevance, reliability (whether theories or techniques have been tested, whether there has been peer review and publication, whether there is a known potential rate of error, and whether the theory is generally accepted in the scientific community), and probative value (how significant is the testimony).
When counsel is dealing with experts like Sexual Assault Response Coordinators (lay experts), they may struggle answering technical questions. More importantly, counsel should object if it appears the testimony is intended to bolster the testimony of the alleged victim. Often, the testimony will merely mirror that of the alleged victim. We often see these pseudo-experts take the stand and attempt to simply repeat everything the alleged victim stated. Defense counsel has to be aggressive and possess the appropriate tone in those situations.
The bottom line is that there many ways that the defense in a sexual assault case can be poorly prepared. Experienced counsel is more important than ever.
The consequences are so severe in a sexual assault case that you should not hesitate to give us a call for a free consultation.
Blog Articles on Sexual Assault
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Sex Offender Registration
Military Rule of Evidence 412 - Victim's Prior Behavior
Military Rule of Evidence 413 - Accused's Prior Behavior
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