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Rape Victims Suffer due to Lack of Protections in Article 32 Hearings

Christina Gilligan*                                  


“Were you wearing a bra?”

“Were you wearing underwear?”

“Did you feel like a ho the next day?”

“How wide do you open your mouth during oral sex?”

The above list of questions reads like an example a professor of evidence might provide her students of inquiries disallowed by the Federal Rules of Evidence since 1978.[1] However, defense attorneys asked the above questions to an alleged sexual assault victim just two weeks ago, subjecting the twenty-one-year old woman to more than 24 hours of draining questioning over 5 days.[2]

This young woman, a Naval Academy midshipman, is just one of the estimated 26,000 members of the U.S. Military who experienced “unwanted sexual conduct” in 2012.[3] Her story and the legal framework that forced her to answer the inappropriate, embarrassing, and – ultimately – irrelevant questions above highlight the dire need for change in the U.S. Military’s treatment of sexual assault victims. Those instituted by Defense Secretary Chuck Hagel last month are not nearly sufficient.[4] This blog post seeks to explore that legal framework and the space it leaves open for defense attorneys to engage in bullying and victim-blaming during Article 32 hearings.

The Background

According to her testimony, the female midshipman attended a Toga and Yoga Party at an off-campus location referred to as the Naval Football House on April 14, 2012.[5] She drank heavily and remembered little of what happened that night.[6] Over the next few days, the then-twenty-year old woman encountered rumors and posts on social media sites that led her to believe that she had been sexually assaulted by three of her classmates.[7] However, out of fear, she was initially reluctant to make any sort of formal report and did not “want the case to go anywhere.”[8]

This reluctance to report the occurrence of a sexual assault is common among victims in the armed services. Through anonymous surveys and sampling research, the Pentagon estimated that about 26,000 personnel in the U.S. Military experienced “unwanted sexual conduct” in 2012, up nearly thirty-five percent from 2010.[9] Yet, the reporting rates of such crimes in the military are startlingly low – just 3,374 sexual assaults were formally reported in 2012.[10] Victims who report sexual assaults not only risk retaliation from the accused or their superiors and isolation from their peers, but also are unlikely to see results – fewer than one in ten sexual assault cases in the military results in sexual assault conviction.[11]

The prevalence of sexual violence in the military has recently garnered much media attention and has been addressed by national leaders, including President Obama and members of Congress.[12] Still, only four months after President Obama informed Naval Academy students that “those who commit sexual assault . . . threaten the trust and discipline that make our military strong,” the midshipman above experienced firsthand the military legal system’s lack of regard for the dignity and protection of victims.[13]

The Legal Framework

As members of the armed forces, the defendants in this case – if they are tried – will be tried under military law in a military court, or a court-martial. Courts-martial are governed by the Uniform Code of Military Justice (UCMJ),[14] an act passed by Congress, and the Manual for Court-Martial (MCM), an executive order that details and expands on the laws in the UCMJ. The MCM also provides discussion on the Military Rules of Evidence.[15] The Military Rules of Evidence include Rule 412, the military counterpart to the federal rape shield rule barring evidence of the victim’s past sexual experiences and sexual predisposition.[16]

Under the UCMJ, once a military member has been accused of a crime or has a charged levied against him, he has a right to a “thorough and impartial investigation of all the matters” set forth in the charges prior to appearing before a court-martial.[17] This investigation must include an “inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and recommendation as to the disposition which should be made of the case in the interest of justice and discipline.”[18]

Further, under the MCM, the majority of the Military Rules of Evidence do not hold in the investigative proceedings – although Rule 412 still applies to Article 32 hearings, at least in theory.[19] However, the relaxation of the other evidence rules and procedural safeguards during the hearings, coupled with the MCM’s guidance that “the defense shall be given wide latitude in cross-examining witnesses,” [20] often leads to the virtual abandonment of the protections of Rule 412 in practice, as described in the case above.

As noted by Melinda Henneberger and Annys Shin, Article 32 hearings are often compared to grand jury proceedings, as the purpose of an Article 32 hearing is to determine whether the trial or court martial is warranted. However, unlike grand juries, Article 32 hearings take place in public and include defense attorneys – who, under the looser procedural rules of pre-court martial investigation, may subject the victim to scathing and open-ended cross examinations.[21] Furthermore, as demonstrated by the experiences of the midshipman victim above, questions often are asked during Article 32 hearings that no civilian court in any state in the country would allow.[22] In fact, a practice guide for attorneys defending military members accused of sexual assault advises using the Article 32 hearing as an opportunity for a “prudent practitioner . . . to explore any potential MRE 412 evidence and build a foundation for success at an MRE 412 hearing, or on cross-examination at trial.”[23]

The Conclusion

Thus, the structure of Article 32 hearings allows for defense counsel and other officials to play fast and loose with important procedural and evidentiary protections, rendering victims even more vulnerable and totally undermining the purpose of Rule 412. As Robert Canaff, a former prosecutor who has worked with the military on improving its sexual assault procedures, noted Article 32 proceedings are so difficult for victims of sexual assault that “a lot of cases die there as a result.”[24] In a context where sexual assault is so wildly unreported, the neglect of these cases and the harsh treatment of the victims cannot be sustained.

In May, President Obama stated, “For those who are in uniform who’ve experienced sexual assault, I want them to hear directly from their commander in chief that I’ve got their backs.” The MCM – which explicitly advises the broad cross-examination of victims in Article 32 hearings – is an executive order. Thus, the time has come for President Obama to honor his commitment to sexual assault victims and tighten the safeguards for Article 32 hearings.

 

 


* JD Candidate, 2014.

[1] Fed. R. Evid. 412. Rule 412 rendered inadmissible, subject to some exceptions, (1) evidence offered to prove that any alleged victim engaged in other sexual behavior, and (2) evidence offered to prove any alleged victim’s sexual predisposition, subject to several exceptions. Today, nearly all jurisdictions in the United States contain similar rape shield provisions.

 

[2] Ruth Marcus, In Navy rape case, defense lawyers go wild, Wash. Post (Sept. 5, 2013), http://articles.washingtonpost.com/2013-09-05/opinions/41788666_1_defense-lawyers-three-midshipmen-military-academies.

 

[3] Craig Whitlock, Obama delivers blunt message on sexual assaults in military, Wash. Post (May 7, 2013), http://www.washingtonpost.com/world/national-security/possible-military-sexual-assaults-up-by-33-percent-in-last-2-years/2013/05/07/8e33be68-b72b-11e2-bd07-b6e0e6152528_story_1.html.

 

[4] Secretary Hagel has “directed each branch of the military to create a legal advocacy program for victims, standardized prohibitions on inappropriate relations between recruiters and recruits, ensured that pretrial hearings are conducted by military lawyers and provided commanders with the option to reassign or transfer the accused.” However, Secretary Hagel has not called for reforms to move the prosecution of sexual assault outside of the chain of command. Nation Action & Sarah Arnold, Despite Changes, Advocates for Victims of Sexual Assault in the Military Continue to Fight for Reform, The Nation (Aug. 16, 2013), http://www.thenation.com/blog/175794/despite-changes-advocates-victims-sexual-assault-military-continue-fight-reform#. Further, neither Secretary Hagel nor Congress has instituted any major effort to directly reform the protections for sexual assault victims during Article 32 hearings. Melinda Henneberger & Annys Shin, Military’s handling of sex assault cases on trial at Naval Academy rape hearing, Wash. Post (Aug.31, 2013), http://articles.washingtonpost.com/2013-08-31/local/41638697_1_roger-canaff-sexual-assault-unwanted-sexual-contact.

 

[5] Ali Weinberg, Woman at center of alleged Naval Academy gang rape testifies for first time, NBC  News (Aug. 28, 2013), http://usnews.nbcnews.com/_news/2013/08/28/20237247-woman-at-center-of-alleged-naval-academy-gang-rape-testifies-for-first-time?lite.

 

[6] Id.

 

[7] Annys Shin, Hearing in Naval Academy rape case concludes, Wash. Post (Sept. 3, 2013), http://articles.washingtonpost.com/2013-09-03/local/41709760_1_accuser-defendant-female-midshipman.

 

[8] Id.

 

[9] Craig Whitlock, Obama delivers blunt message on sexual assaults in military, Wash. Post (May 7, 2013), http://www.washingtonpost.com/world/national-security/possible-military-sexual-assaults-up-by-33-percent-in-last-2-years/2013/05/07/8e33be68-b72b-11e2-bd07-b6e0e6152528_story_1.html.

 

[10] Id. With respect to the low rate of reporting, Senator Claire McCaskill has said, “That is the crux of the problem here, because if a victim does not believe that the system is capable of believing her, there’s no point in risking your entire career.” Id.

 

[11] Id.

 

[12] Id.

 

[13] Valerie Strauss, Text: Obama’s speech at U.S. Naval Academy graduation, Wash. Post (May 24, 2013), http://www.washingtonpost.com/blogs/answer-sheet/wp/2013/05/24/text-obamas-speech-at-u-s-naval-academy-graduation/.

 

[14] Uniform Code of Military Justice, 10 U.S.C. §§ 801 – 946.

 

[15] Manual for Courts-Martial (2012 Edition).

 

[16] Mil. R. Evid. 412.

 

[17] Art. 32, Uniform Code of Military Justice, 10 U.S.C. § 832.

 

[18] Id.

 

[19] Rule 405, Manual for Courts-Martial (2012 Edition).

 

[20] Id.

 

[21] Ruth Marcus, In Navy rape case, defense lawyers go wild, Wash. Post (Sept. 5, 2013), http://articles.washingtonpost.com/2013-09-05/opinions/41788666_1_defense-lawyers-three-midshipmen-military-academies; Melinda Henneberger and Annys Shin, Military’s handling of sex assault cases on trial at Naval Academy rape hearing, Wash. Post (Aug.31, 2013), http://articles.washingtonpost.com/2013-08-31/local/41638697_1_roger-canaff-sexual-assault-unwanted-sexual-contact.

 

[22] Melinda Henneberger and Annys Shin, Military’s handling of sex assault cases on trial at Naval Academy rape hearing, Wash. Post (Aug.31, 2013), http://articles.washingtonpost.com/2013-08-31/local/41638697_1_roger-canaff-sexual-assault-unwanted-sexual-contact.

 

[23] Kevin Smith, Navigating the Rape Shield Maze: An Advocate’s Guide to MRE 412 (2000), available at https://www.jagcnet.army.mil/DOCLIBS/ARMYLAWYER.NSF/c82df279f9445da185256e5b005244ee/bf1ce48e50d5be4385256e5b0054ce07/$FILE/Article%201.pdf.

 

[24] Melinda Henneberger and Annys Shin, Military’s handling of sex assault cases on trial at Naval Academy rape hearing, Wash. Post (Aug.31, 2013), http://articles.washingtonpost.com/2013-08-31/local/41638697_1_roger-canaff-sexual-assault-unwanted-sexual-contact.

 

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2 Responses to “Rape Victims Suffer due to Lack of Protections in Article 32 Hearings”

  1. Paul
    October 7, 2013 at 7:52 pm #

    You are incorrect.  412 applies in fact, not in theory.  There is zero evidence that the lak of MREs at a 32 swallow 412 any more than they swallow any of the other applicable MREs.  The 32 was overseen by an experienced military judge, the questions were subject to several objectons.  In this case there was no bullying or badgering.  Were you aware that the complaining witness tried to enter into a conspiracy to cover up this incident?  That she admitted lying to the USNA, to federal investigatorsa and admtted to lying on the stand?  Your facts are incorrect, you base them off wildly misreported stories and are results driven.  the 32 is more than a preliminary hearing.

  2. Brett
    December 17, 2013 at 4:23 pm #

    Author, a student I believe, seems to have zero experience with military justice, courts-martial or Article 32 hearings; thus, her opinions are grains of salt and statements, such as, "… often leads to the virtual abandonment of the protections of Rule 412 in practice, as described in the case above," are suspect.  Very disappointing.

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