Get ready for some unforeseen consequences as Congress changes how the military handles sexual assault.
Alleged victims will get their own lawyers. That could protect their rights, or it could double-team the defense. Preliminary hearings will be constrained. That could shield victims, or it could shackle fact-finding. Military commanders who don’t prosecute allegations will get second-guessed by superiors. For any career-minded officer, that could be hard to ignore.
All told, Congress has ordered some 30 changes in how the military handles sexual assault. On Friday, President Barack Obama reiterated his own intentions to crack down.
“We pursued reforms that would encourage survivors to report these assaults, lead to more prosecutions, and put these perpetrators behind bars,” Sen. Claire McCaskill, D-Mo., said Friday.
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The myriad military sexual assault provisions are included in a $625 billion, 1,105-page defense authorization bill passed by the Senate late Thursday night and now heading for Obama’s signature. The goals seem laudatory and clear. The real-world consequences, though, could take time to sort out.
“Why don’t they have the integrity to simply state their true intentions – that they want to change the system to conform with a presumption of guilt and to make it much easier to prosecute and convict, and get harsh sentences and no clemency?” military defense attorney Richard Stevens said Friday.
Lawmakers wrote the defense bill in the wake of high-profile sexual assault cases, including an Air Force general who overturned the conviction of a fellow fighter pilot. More broadly, members of the military reported 3,553 sexual assault allegations between October 2012 and June 2013, according to the Pentagon. Many more incidents go unreported.
“Our military justice system should encourage sexual assault victims to report these crimes and pursue justice by prosecuting perpetrators,” said Democratic Sen. Barbara Boxer of California. “Tragically, the (current) process does just the opposite.”
Obama added Friday that “we have an urgent obligation to do more to support victims and hold perpetrators accountable for their crimes,” and he directed Pentagon officials to report back next December on their progress.
“Survivors of these heinous crimes expect and deserve us to act now,” Rep. Jackie Speier, D-Calif., said Friday.
In some cases, the revisions may play out in unexpected ways.
For alleged victims, the bill requires that a new “special victim’s counsel” be provided to offer legal “consultation and assistance.” This could reassure the alleged victim through the investigation and trial. It could also prompt litigation amid questions about the special counsel’s powers and a potential tilting of the playing field.
“Allowing a (special victim’s counsel) to represent and assert the rights of an alleged victim at court-martial would effectively double the prosecutorial efforts against the accused,” Marine Corps Capt. Jason R. Wareham warned in a legal brief earlier this year.
Courtroom challenges to an existing Air Force victim’s counsel program already have begun. In January, a trial judge at Holloman Air Force Base in New Mexico ruled that letting the special victim’s counsel address the court-martial proceedings would undermine the appearance of an impartial judiciary. In July, a divided U.S. Court of Appeals for the Armed Forces overturned the trial judge.
“There are many examples of civilian federal court decisions allowing victims to be represented by counsel at pretrial hearings,” the military appellate court stated in its 3-2 ruling.
Other legislative changes address issues that seem notorious, but are relatively infrequent.
The defense bill, for instance, strips military commanders of their ability to overturn convictions. This responds to the outcry that ensued when Air Force Lt. Gen. Craig Franklin on Feb. 26 overturned the sexual assault conviction of Air Force Lt. Col. James Wilkerson. Franklin explained in a memo that “the more evidence that I considered, the more concerned I became about the court-martial findings.” Franklin’s staff judge advocate had recommended upholding the conviction.
It’s already rare for commanders to overturn convictions.
Air Force commanders overturned 40 convictions, five of them involving sexual assault, out of 3,713 convictions in the last five years, according to the Pentagon. In the Navy and Marine Corps between 2010 and 2012, only eight convictions were overturned by commanders out of 2,489 convictions on all charges. Army commanders overturned 68 convictions out of 4,603 cases with convictions since 2008.
The defense bill also includes language promoted by Boxer and Republican Sen. Lindsey Graham of South Carolina to tighten so-called Article 32 preliminary hearings. These are akin to civilian grand jury proceedings, but they came into political disfavor this year after defense attorneys aggressively questioned over several days an alleged sexual assault victim from the U.S. Naval Academy.
The bill prohibits an alleged victim from being compelled to testify at the Article 32 hearing and limits the type of questions that can be asked, among other changes. The revisions have won praise from some experts like Eugene Fidell at Yale Law School, while others question their impact.
“Congress certainly painted with some broad strokes,” Zachary Spilman, a Marine Corps judge advocate, said Friday. “Gone is the requirement for ‘a thorough and impartial investigation’ (and) the guarantee to an accused of the opportunity ‘to present anything he may desire in his own behalf.’”
At the same time, Spilman – stressing that he was speaking only for himself – predicted that there remains “plenty of room for a clever defense counsel to protect the rights of an accused.”
Commanding officers who decline to prosecute a sexual assault case will now get their decisions reviewed either by the “next superior commander” or by the service secretary – a civilian political appointee – depending on the circumstances, under the bill. Some believe this will improve accountability; some fear it puts a thumb on the scale.
“What I don’t think we want is a commander saying, ‘My career depends on whether I prosecute this case,’” military defense attorney William E. Cassara said Friday.