This article outlines in detail the four new realities that not only incentivize false allegations of sexual assault, but also how those accused of such crimes have their constitutional rights stripped away, all for political gain.
NAIL #1: The Destruction of the Article 32 Process
In Federal courts, those accused of a crime are given investigative assistance to ensure that the right person is brought to justice.
This means that an investigation is done not only into those accused of a crime, but an investigation is done to ensure that an accuser’s claims are credible.
In the military, soldiers accused of a crime are not given this investigative assistance. (1)
This is why the Article 32 investigation was so important.
It made up for the lack of investigation by requiring accusers to testify at a hearing where investigating officers would decide on whether to go to trial or not.
It served, as the Armed Forces Court of Appeals put it, as “The only practicable means [for an accused soldier] of discovering the case against him.” (2)
Jackie Speier (D-CA) successfully lobbied to dismantle this process under the guise of protecting victims from being shamed. (3)
The logical next step would be to offer soldiers investigative assistance as an offset but with the National Defense Authorization Act of fiscal year 2014,(NDAAFY14) the Obama administration stripped away the “only practicable means [for an accused soldier] of discovering the case against him” (4), while simultaneously disregarding Federal statute and refusing to offer any investigation on behalf of an accused soldier.
NAIL #2: Threatening Commander's Careers
Every commander’s perceived success or failure in the area of sexual assault is now taken into consideration in every evaluation and every promotion.
The message is crystal clear: anyone who cares about their military career will fall in line with the sexual assault “epidemic” narrative or face a firestorm of criticism from congress and the media, be removed from their positions of power, blocked from promotion and forced into retirement.
A military installation site visit by the Judicial Proceedings Panel(JPP)which interviewed 280 individuals involved in the military justice process found the following:
The consensus among prosecutors was that “there is no way to stop a [sexual assault] case when the evidence failed to support going forward to trial” (5) and “due to political pressure, convening authorities will always move forward with sexual assault charges even when the evidence is weak.” (6)
NAIL #3: Granting "Victims" Disproportionate Rights
As soldiers accused of sexual assault continue to have their rights stripped away at a startling pace, the NDAAFY14 gave “victims” greater legal rights.
As soon as a report of a sex assault is made, an accuser is made aware of their status as a “special victim” and offered special victim counsel(SVC).
These are special attorneys that are given out like candy to anybody that makes an allegation of sexual assault.
While the motive behind the SVC program is indeed honorable, the result has been to stack the deck against those accused by limiting or even denying access entirely to witnesses. (7)
This SVC also provides a number of services including legal assistance regarding criminal liability of the alleged victim.
This means that when a soldier is in trouble for under aged drinking, trespassing, sleeping with lower enlisted subordinates or adultery (which is a crime that can result in prison time in the military) as long as they say they were sexually assaulted, they are give immunity and the military instead brings the hammer down on the accused person.
A DISTURBING STORY
In Army Major David Rudometkin’s case, his disgruntled ex-wife was drunk and high on cocaine and intentionally crashed her car into a house where he was living with their two kids.
She then got out, smashed the windows and destroyed the interior of the house leaving $15,000 worth of damage!
After leading police on a high-speed chase thru the military installation and crashing into a police cruiser, she was eventually taken down by a grab net.
Just one month later, now facing prosecution for her rampage, she now begins making allegations about her ex-husband, Major Rudometkin. Instead of making these allegations to the police however, she made these allegations directly to the woman prosecuting her.
This prosecutor, an army captain, then gives her defacto immunity telling her she “will only have to answer for a DUI” and brings down the hammer of the UCMJ down on Major Rudometkin's head.
He was eventually convicted and given 25 years in prison thru the military courts purely on he-said, she-said testimony.
These provisions were intended to make it easier for somebody to report a sexual assault.
This way they were still able to seek justice in spite of their own “minor collateral misconduct”. (8)
Obviously, this is being abused.
Special victim counsel can deny defense attorneys from talking to the alleged victim and also help accusers receive preferential transfers to better duty stations.
This issue was brought up in multiple JPP reports from 2016 and 2017 stating that “The ability to ask for these transfers has encouraged fraudulent claims of sexual assault.” (9)
This point is collaborated by Army Captain Richard Camacho’s case.
His wife, AA, an army captain, was flagged and unable to leave her duty station as she was pending disciplinary action for having a10-month long affair with a married staff Sargent.
At the commanding general’s table facing reprimand for her affair, she declared her victimhood, evoked special victim status to avoid interviews with the defense and avoid testifying at the Article 32 hearing.
Not only were all considerations for disciplinary action against her dropped, but she was allowed to be transferred to a preferential duty station despite being flagged for her infidelity.
She was also rewarded by being placed in an engineer captain career course that only 6-8 aviators are selected for each year.
Captain Camacho, who was put in for the distinguished flying cross for combat action in Afghanistan for two "gun runs" in response to a call for help by a ground force commander, severely wounded and pinned down duran an insider attack, went to prison.
And, the accuser in this case IS ON VIDEO SAYING THE SEXUAL ASSAULT DIDN’T HAPPEN. (10)
Life is good for the privileged victim.
Although I’m sure these special victim privileges could have been something positive used to help real victims, they have become nothing more than a complete and utter travesty. In addition to all this, under the UCMJ rules for court martial (RCM):
An accused in the military is not entitled to a jury of his peers or to a cross representation of the community. (11)
In the civilian court system, where a jury consists of 12 people and you need every juror to agree that the defendant is guilty, AND jurors are not subject to command influence, you can have a lot more confidence that the correct decision will be made.
A military jury can be as small as 5 people and they only need a 2/3 vote in order to convict the service member of an offense.
Military juries can be a big problem.
My jury for example, consisted of 4 people who knew somebody close to them that had been sexually assaulted, 3 members were in the same chain of command and 1 juror had the prosecutor as legal counsel on an entirely separate issue.
Not a single one of these members was objected to by my military attorney.
The inherent problems with military juries along with the other prejudices listed above are what makes this last issue created under the NDAAFY14 so significant.
NAIL #4: Remove Commander's Authority to Reverse Unlawful Convictions
The NDAAFY14 stripped away the convening authority’s power under Article 60 of the UCMJ to overturn a case completely or drop charges that lack evidence.
This final piece served as an important counterbalance(one that was rarely used) to some of the glaring issues with the military justice system.
It makes sense for commanding generals to be able to reverse convictions especially in
he-said/she-said sexual assault cases which are dense with prejudice against those accused at every level.
The convening authority’s (the commanding general in charge of establishing a court martial) power to grant clemency in this manner has served as a source of equilibrium within a system where the scales of justice are already tilted in favor of the prosecution.
It served as a “safety valve” to prevent falsely accused soldiers from being railroaded by a process that unfairly stacks the deck in the following ways:
Defense cannot interview accuser. (13)
Defense cannot offer exculpatory evidence that might “embarrass the victim.” (14)
An accuser can ask military investigators to not record their statement.
An accuser does not have to testify at the Article 32 hearing. (15)
Unlike federal courts, there is no investigative assistance done on behalf of an accused military member. (16)
Commanding general will always refer a sexual assault case to court martial regardless of evidence, due to political pressure. (17)
At trial, often the first time the defense speaks to the accuser, they may cross examine but are very limited on questions they can ask. This serves to protect the accuser from being “shamed”. (18)
Jury can convict on a 2/3 vote with as little as 5 members.
Since this last change, which was lobbied for by Kirstin Gillibrand (D-NY) and Claire McCaskill (D-MO), there are now no more roadblocks to stop falsely accused soldiers from getting steamrolled.
Now, when a case slips thru one of the many cracks in this judicial nightmare, the convening authority can no longer overturn the case or offer any form of relief.
Unlike the travesty of the Title IX tribunals, court martial scan result in decades behind bars.
Thank you senators, you are all doing a great job.
1-2. “Report on barriers to the fair administration of military justice in sexual assault cases” Available at: jpp.whs.mil/public/docs/08-panel_subcommreport_barriers_final_20170512.pdf
3. See 159 cong. rec. H7059 (Congresswoman Speier (D-CA) introduced the reforms to article 32), Available at: https://www.gpo.gov/fdsys/pkg/CREC-2013-11-14/pdf/CREC-2013-11-14-pt1-pgH7059.pdf
4. See Footnote 1.
5-6. Judicial proceedings panel subcommittee site visits available at: jpp.whs.mil/public/docs/08-panel_reports/site_visits/sitevisit_A_complete.pdf
7. See 10 u.s.c.s. & 1044e(lexis 2014).
8. “Unfounded sex assault charges trending up in DoD reports” Available at: www.cmrlink.org/issues/full/unfounded-sex-assault-charges-trending-up-in-dod-reports
9. See Footnote 1.
10. See NO 19-in the Supreme Court of the United States Richard M. Camacho, petitioner, v. United States, respondent “there was no sexual force or anything”
11. UCMJ, Art. 25(a)(2)(2012);2012MCM,R.C.M.501(a),503(a),504,921(c)(2). An accused in the military is not entitled to a jury of his peers or to cross-representation of the community. United States v. Dowty, 60 M.J. 163, 169 (C.A.A.F. 2004)
12. See Major Brent A. Goodwin, Congress offends Eisenhower and Cicero by annihilating Article 60, UCMJ, Army Law., July 2014 (Discussing the 2014 modifications to Article 60)
13. See Footnote 7.
14. See M.R.E. Rule 412.
15. See Footnote 3.
16. See Footnote 1.
17. See Footnote 5.
18. See M.R.E. Rule 412.
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