It’s Time to Advocate for the Accused: The Pendulum has Swung too Far in Prosecuting Sexual Assault Cases in the Military
As I have written before, sexual assault is a heinous crime. The military and society should ensure that every sexual offender faces justice, and every victim of this crime is provided the necessary support to overcome the consequences of its brutality. Even the court-martial defense lawyers would agree that those who are guilty of sexual assault should be held accountable. However, in the zeal to respond to the perceived sexual assault “crisis,” the military cannot disassemble the protections against wrongful convictions, and cannot ignore that false reports of sexual assault must be guarded against. Advocacy for victims must not trample on the rights of the accused. A thorough reading of the Constitution reveals no reference to “victims” while at the same time providing protections of the rights of the Accused in the 4th, 5th, 6th, 8th & 14th Amendments – these protections are to guard against wrongful convictions.
My Personal Experience – the “Always Believe the Victim” Mantra is the Wrong Approach
The last sexual assault case I prosecuted in the U.S. Army involved a victim that either had profound memory problems or intentionally lied, both to me and under oath during a pretrial hearing. Admittedly, the subject of the lie was collateral to the alleged sexual assault misconduct, but highly relevant to the non-sexual assault alleged misconduct, and not unimportant. For this and other reasons, I ultimately withdrew as the prosecutor, and shortly thereafter resigned from active duty in the U.S. Army. Two years later, I was recounting this case with a professional colleague, and I was challenged – that my withdrawal was based more on my anger over being lied to personally – rather than my belief that I should not professionally proceed unless charges with no corroboration and relying solely on her credibility were withdrawn. This prosecutorial colleague lamented that most alleged victims lie about something, and it is expected with sexual assault cases – I should not have taken it personally.
That challenge and comment caused me to retrospectively evaluate my past cases and review my thoughts on how I interacted with victims as a former Special Victim Prosecutor (SVP), and the criticism of me was partially correct – not because I was offended personally – but rather because it revealed a potential weakness in how I approached sexual assault cases as an SVP.
In theory, I knew that victims could lie about the sexual assault, but I was pretty good at getting to the truth – it took time, and relationship building (that is now virtually impossible with the advent of the SVC program). In the over three dozen sexual assault cases I prosecuted in my four years as an SVP, I do not believe I had a single victim maintain a lie to me as we went to trial until this case. The reason was the professional relationship I forged with each alleged victim as I prepared for trial.
By the time my tour as an SVP ended, I generally accepted the proposition taught by the civilian sexual assault prosecution trainers that prosecutors (SVPs, STCs, TCs) should always believe the victim in sexual assault cases, explain inconsistencies and contradictions in his or her testimony, and use experts in counter-intuitive behavior to assist in explaining otherwise contradictory statements and actions. It was taught that as a prosecutor if you questioned the story of the alleged victim you were feeding rape myths and victim blaming.
This was wrong. Dead wrong.
Questioning a victim when the explanation of the facts does not make sense is being a good lawyer. It is doing your job as a prosecutor seeking justice. It was catching this victim in a direct lie proven by forensic evidence that caused me grave reservations, that I now know went deeper than that individual case. It shattered my general belief in the “always believe the victim” approach to prosecuting sexual assault cases, which in retrospect, is one of the major issues I had with continuing with the prosecution of the case after the leadership indicated that it would not dismiss the charges relying solely on her credibility. Winning a particular case can never be more important that Justice.
Understanding Your Duty: Defense Counsel and Prosecutor Ethics are Different
The ethical obligations of defense counsel and prosecutors are vastly different. As a defense counsel, the obligation is to the client. Legal ethics require the defense attorney to do everything within his or her power, not expressly prohibited by the rules, to defend and acquit his or her client at trial. The goal is to defend and win at any cost within the rules. Justice White explained the obligation of the court-martial defense lawyer and other criminal defense attorneys in United States v. Wade (1967):
Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.
On the other hand, the ethical obligation of the prosecutor is truth and justice. The prosecutor is held to a higher standard than other attorneys in our legal system and unlike their defense brothers and sister, their duty is NOT to win cases at any cost within the rule – their goal is JUSTICE. The Supreme Court acknowledged this in Berger v. United States (1935):
The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor – indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
The sovereign and its people is the prosecutor’s client. The victim is not the client – the victim is a fact witness. It is the duty of the prosecutor to assess the credibility of all fact witnesses, and that cannot be done if the prosecutor must always believe the most important fact witness, the victim. The special training our young prosecutors receive that instructs them to always believe the victim in sexual assault cases is wrong. These young prosecutors should be taught that there are multiple reasons why alleged victims may initially withhold information during reports of sexual assault, that there are reasons for delayed reporting, and that trauma affects memory, however they should never be taught to throw common sense out the window and always believe the alleged victim. While it may be true for medical treatment or behavioral health counseling that care providers MUST always believe the victim, such is not the case for attorneys representing the sovereign, seeking to convict an accused who is presumed to be innocent. Always believing an alleged victim in the light of contradictory or significant inconsistencies in his or her anticipated testimony risks wrongful convictions based on false reports.
The Deck is now Stacked Against the Accused in the Investigation, Preferral and Prosecution of Sexual Assault Cases
Times have certainly changed in the Army. In addition to the creation of the SVP program where there are now 23 specially training sex crimes prosecutors dedicated to only prosecuting sexual assault crimes, there are specially trained sex crime investigators in CID. There are career sex crime civilian prosecutors whose sole responsibility is assisting the government prosecute sexual assault cases. Assisting the SVPs are dedicated sex crimes paralegals, and special victim witness liaisons in addition to the SARC, victim advocates, unit advocates and SHARP resources in place for the victim. There are no equivalent resources for those defending military members against allegations of sexual assault. The rules have changed making it easier to prosecute alleged sex crimes. Victims can now refuse to participate in the now gutted Article 32 Investigation. Alleged victims get their own Special Victim Counsel who has standing to advance arguments in court in addition to the prosecutors, and with the allegation of sexual assault, alleged victims can demand an expedited transfer to another installation at government expense. Suffice it to say; when it comes to allegations of sexual assault, the deck is stacked against the presumed innocent accused. This topic will be more fully explored in a forthcoming blog.
The Current Opinion of Sexual Assault Reporting and False Allegations in the Military
These major changes over the past few years caused me to wonder what was the opinion of others were regarding these changes, and more specifically, what was the current opinion about the reporting of sexual assault cases in the military. In an effort to sample this opinion, I designed a questionnaire that would survey general opinions about sexual assault in the military and the dynamics of sexual assault reporting. I distributed the survey via social media (Facebook, LinkedIn) and received 182 responses at the time of this writing. Admittedly, this is not a scientific survey, but rather provides an anecdotal glimpse about the current opinion about sexual assault reporting in the military.
According to the most recent Annual Report on Sexual Assault in the Military, Fiscal Year 2015, there were 6,083, reports of sexual assault in the military in Fiscal Year 2015. The results of my survey revealed that only 13.53% accurately chose that sexual assault reports were “between 5,001 and 6,500.” Most respondents (65.30%) believed there were fewer than 5,000 reports of sexual assault while 33.53% believed there to be less than 2,000 reports. The vast majority people surveyed believe there are fewer reports of sexual assault in the military than there actually are – so what does that mean?
Prosecutors, victim advocates and the proponents of changes in the UCMJ which make it easier for the government to prosecute sexual assault cases cite the increased reporting as a success – that efforts to combat sexual assault in the military are working, and alleged victims have greater confidence in the military justice system and are therefore more willing to come forward. And while that may be true for some, the truth is the reforms have “incentivized” sexual assault reporting – for good or bad.
False Allegations of Sexual Assault in the Military
While there are wildly differing statistics on the number of false reports of sexual assault, most JAGs and all court-martial defense lawyers agree that the phenomena is REAL. Even victim advocates and prosecution trainers acknowledge that false reports of sexual assault exist, including David Lisak. Although his study found civilian false reports to be 5.9%, he acknowledged false reports could be as high as 10.9% in his review of scientifically valid studies (Lisak 2010, referring to Harris & Grace, 1999). The methodologically questioned Kanin Study (1994) found a civilian “false report” rate of over about 41% (a finding refuted by Lisak). Bottom line, at least nearly 1 in 10 allegations of sexual assault in civilian jurisdictions are false, whether an outright fabrication, misidentification or mistaken belief by the alleged victim. According to the 2015 SAPRO Report, there were 6,083 actual reports of sexual assault in the military for FY 2015 – and using David Lisak’s findings of 5.9%, that means if there was the same rate of false reports in the military, at least 358 servicemembers were falsely accused of sexual assault in 2015 (about one a day). Consider that Mr. Lisak acknowledged that scientifically valid studies had the rate as high as 10.9%, we are talking about 663 false reports of sexual assault in 2015. These are the conservative figures and are quite disturbing, especially when prosecutors are taught to ALWAYS believe the victim.
If we consider the false allegation rate from the Kanin study, whose main critics include the victim advocate Mr. Lisak and other victim’s rights organizations, then the number of service members facing false reports in 2015 was an astronomical 2,433! In his recently published article (2016), then-Major Reggie Yager, U.S. Air Force, acknowledges some of the shortcomings of the Kanin study but concludes:
All that being said, the value of Kanin’s study is its simplicity: 41% [of the sexual assault victims] said they lied even when admitting a lie was threatened with criminal actions. This 41% finding represents a fair median for the actual rate of false allegations discussed above considering the best definition for false allegations. The explanations the alleged victims provided also mirrors the documented reasons why people make false allegations.
It should be noted that all the current research on false allegations of sexual assault relies solely on civilian data. This is troubling because 76.92% of the respondents in my survey believed that there are more incentives to falsely report sexual assault in the military as compared to the civilian community. There are several possibilities for this result as noted below.
Increased Incentives for False Reports of Sexual Assault in the Military
When testing whether a survey respondent agreed or disagreed with a potential “incentive” in the military for a false report, the degree of agreement or disagreement was scaled as “completely agree/disagree, mostly agree/disagree and somewhat agree/disagree,” with “neither agree or disagree” as the neutral opinion. The following chart summarizes the results:
|The following is an incentive for a false sexual assault report||Disagree||Neutral||Agree|
|Avoid punishment for being late, missing formation or missing duty||22.90%||17.32%||59.78%|
|Avoid punitive consequences of adultery||12.77%||10.00%||77.23%|
|Get back at supervisor that is too strict or rigid||18.89%||12.78%||68.34%|
|To request expedited transfer to another post||13.33%||9.44%||77.22%|
|To qualify for up to 36 months of transitional compensation||24.86%||20.44%||54.69%|
|To gain custody in a divorce proceeding||18.89%||16.11%||65.00%|
|To get back at an intimate partner for infidelity||15.46%||12.15%||72.37%|
|To hide an infidelity from a partner or spouse||8.38%||8.94%||82.68%|
What is obvious is that the vast majority of respondents agree that there are circumstances in the military that make it more likely that false reports of sexual assault exist. Despite this overwhelming belief, there have been no efforts to study the rates of false reports of sexual assault in the military. To ignore such overwhelming opinion is to deny reason. A task-force comprised court-martial defense lawyers, prosecutors, law-enforcement, advocates and social scientists should tackle this enormous task – ignoring the differences between the civilian and the military community when it comes to false reports will not make the differences disappear.
What has become lost in this frenzy to eliminate sexual assault in the military is that the men and women accused of sexual assault are entitled to the presumption of innocence – but that is not necessarily the case in the military. Changes to the evaluation system make how one supports the Army sexual assault prevention program a condition of promotion. One perceived misstep and an otherwise American Hero becomes a “has been” and his or her career is over.
It’s no wonder my survey revealed that 59.44% of the respondents believe that in 2016 commanders have no choice but to prosecute all cases where a victim alleges sexual assault. The majority agree (67.40%) that the rights of those accused of sexual assault in the military are inadequate, while they disagree by a substantial majority (81.76%) the military is not doing enough to prosecute sexual assault cases. As far as victim’s rights go, 76.12% disagree that the rights of victims in sexual assault in the military are inadequate.
The complete findings of my survey are available here.
The pendulum has swung too far – it is time for us all to stand up and say enough is enough.
Victims of sexual assault are not any more special than other victims of crime – the elementary school girl who lost her father to homicide, the WWII veteran who is penniless the result of fraud, and the now-cognitively impaired school teacher beaten unconscious by a student – they all deserve the government’s best efforts. The focus should not be on a particular class of cases and making them easier to prosecute, but rather improving the art of prosecution – which is the natural casualty of a system that focuses on producing well-rounded generalists.
My next blog dealing with sexual assault will compare and contrast the prosecution system for addressing sexual assault versus the defense system for protecting the accused facing an allegation of sexual assault.
Will M. Helixon