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Monday, September 21, 2015

CIVILIAN COURT-MARTIAL DEFENSE LAWYERS: Military Appellate Courts…“Yes, people can engage in consensual sex when drunk!”


CIVILIAN COURT-MARTIAL DEFENSE ATTORNEYS (Former JAG Lawyers) NEWS:

Another military sex assault post?  Yes, I’m afraid so.  For those of you who read my posts from time to time, I know that a vast number of them address allegations of rape and sexual assault in the military justice system.  That just happens to be the reality of my legal practice, and the state of the military justice system.  

I have been handling military justice cases on and off active duty since 1995.  In that time, no broad topic has been as prominent in the system as rape and sexual assault.  No category of clients is even close to the number of clients I’ve defended in the military who were accused of rape or sexual assault.  No, that doesn’t mean there’s an epidemic of actual rape and sexual assault in the military, although there might be an “epidemic” of such allegations (irrespective of the merits of a large percentage of them).

Within the broad topic of military sexual assault cases, no subtopic has been as prominent as engaging in sex after drinking alcohol…and no issue has been as misunderstood and misstated.  This issue reaches crescendos in the wake of scandals.  Right after the Air Force Academy scandal in 2003, “drunk sex” was THE issue in military briefings and cases.  Here, for example, is an article I wrote back in 2004 after having successfully defended the first litigated rape court-martial trial at the Air Force Academy post-scandal:


Likewise, after the 2011-2012 Lackland AFB MTI scandal (military training instructor) scandal, agenda-driven politicians and advocacy groups once again high jacked the public narrative about the military justice system (including completely inaccurate statements about the system and ill-advised systemic changes), and the military has once again overreacted, with mandatory sexual assault training and briefings; many of which are still legally inaccurate…even in 2015!  There are still those who perpetuate the legally incorrect message that people can’t consent to sex if they have been drinking or are drunk.  In fact, this message has included claims that as few as one drink renders people (particularly women) incapable of consenting to sex and not responsible for their own behavior or decisions.    

The drunken hookup comedy movie “Knocked Up” is all of a sudden a rape movie, if we are to believe politicians, advocacy groups, and many military briefings.  Absurd!  There is a big difference between the law of consent and preferred social behavior.  I’m not advocating that military members should “get drunk and screw” as Jimmy Buffet sang, but if they do, that’s not the definition of “rape,” although it may be a poor or regrettable personal choice. 

One of the big problems is that this issue is one to be avoided if you’re in a position of authority, as any attempt to have a real conversation about it results in claims of “victim blaming.”  Just consider, for example, how the Air Force Chief of Staff, General Mark Welsh, not only had to promise Congress that he would be tough on the issue of alleged sexual assault in order to be confirmed as Chief of Staff, but he had to go on a public apology tour for daring to mention the problem of the “hookup culture” among the young.  Just Google “General Mark Welsh and Air Force and ‘hookup culture’” and you will be amazed by the vitriol.  So much for an attempt to address the issues in a way that could suggest some level of participation or involvement by the other individual in an alleged drunk sex scenario.  You must allege rape and presume guilt in these scenarios or you are a misogynist, a “victim blamer,” etc. etc.

But then there’s the LAW.  And, the Navy-Marine Corps Court of Criminal Appeals has again reminded us that, according to the law:

drunk ≠ unable to consent

drunk sex ≠ per se rape

The latest appellate opinion appears here:


The only time alcohol intoxication renders a person unable to consent to sex is when the level of intoxication is SO HIGH that the person is either unconscious or the person “does not possess the cognitive ability to appreciate the sex act and does not possess the mental and physical ability to make and communicate a decision regarding that conduct to the other person.”  In other words, it’s about the ABILITY to make and communicate a decision at the time of the sex, it’s NOT about whether that decision was a good one, a regrettable one, or even a different one than would have been made if the person was sober. 

If the person recognizes at the time that she is having sex and she is able to communicate her decision to engage in the sex, albeit drunkenly, that is NOT sexual assault.  It may be behavior that should be avoided.  It may be behavior that causes regret, and guilt, and shame, and emotional upheaval…but, it is NOT rape or sexual assault.  Until that legal concept is understood and disseminated throughout the military population, there will continue to be court-martial after court-martial and military conviction rate statistics that are deemed "unacceptable" by those who are determined to change, and destroy, the military justice system. 

For more information about the military justice system, particularly cases alleging rape and/or sexual assault in violation of UCMJ Article 120, type “rape” or “sexual assault” into the search bar above the blog posts.  Also, see:


We offer free consultations for a case you may be involved in.  Just call us.

Thank you.    

By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, P.C.
http://www.militaryadvocate.com

Blog postscript: Attorney Frank J. Spinner and I (attorney Richard V. Stevens) are former active duty military lawyers (JAG). Our perspectives and advice, therefore, are based upon our experience as military defense lawyers and as civilian criminal defense lawyers practicing exclusively in the area of military law and military justice. This blog addresses issues in military law, military justice, military discipline, military defense, court-martial practice, the Uniform Code of Military Justice (UCMJ) and other military and/or legal topics. Nothing posted in this blog should be substituted for legal advice in any particular case. If you seek legal advice for a particular case, please contact The Law Offices of Richard V. Stevens and The Law Office of Frank J. Spinner for a free consultation. These military defense law offices are located in Northern Florida (Pensacola, Ft Walton, Destin, Eglin AFB, Hurlburt Field, Duke Field, Panama City, Tyndall AFB areas) and Colorado Springs, Colorado (FT Carson, Peterson AFB, Air Force Academy, Schriever AFB, Cheyenne Mountain Air Force Station, Buckley AFB areas), but our military defense law practices are worldwide – we travel to wherever our clients are stationed or serving and need us.

Thursday, September 17, 2015

CIVILIAN COURT-MARTIAL DEFENSE LAWYERS: Article 32 Changes - "Alas Poor Truth, We Knew You" by Thomas Becker


CIVILIAN COURT-MARTIAL DEFENSE ATTORNEYS (Former JAG Lawyers) NEWS:

As you know, for years I have blogged about how misguided politicians and advocacy groups have set about to destroy the fairness of the military justice system, particularly in military cases alleging rape and sexual assault.  Justice is not the interest that motivates these groups. They seek predetermined outcomes that favor conviction and harsh sentences.  They presume guilt.  They dominate the public discourse by propagating the false narrative that the military is suffering from a "rape epidemic" and the military justice system is "broken"...because these groups can't accept that justice statistics aren't completely one-sided.  


You also know that the changes to military Article 32 hearings are a major part of this initiative to ensure predetermined outcomes in military justice cases.  


The outgoing President, and Congress, hold a blade to the neck of military justice, as they continue to threaten more changes if they don't see "improvement."  Improvement, of course, does not translate to fairness, it means just the opposite.  


A very thoughtful article is included in the most recent edition of The Reporter, which is published by the Air Force JAG School.  The article, which was authored by Mr. Thomas Becker, is titled "Alas, Poor Truth, We Knew You" and can be found on page 41 at this link:


http://www.afjag.af.mil/shared/media/document/AFD-150827-010.pdf

Those who advocated for the changes to Article 32 hearings, and who continue to argue these changes were warranted, claim this was merely to make the military justice system "more like civilian systems."  This soundbite is such a fallacy, however, because it (intentionally) fails to make mention that while significant rights have been stripped from military members accused of crimes, none of the systemic protections enjoyed by civilians accused of crimes were incorporated into the military justice system to balance out the changes being made.  

The military justice system is a federal criminal justice system.  So, let's compare the newest iteration of the military justice system with its civilian counterpart in "felony" level cases:



FEDERAL SYSTEM
MILITARY SYSTEM


At indictment, the accused has met:
1. A binding initial appearance before a federal judge;
2.  A binding preliminary hearing before a federal judge; and,
3.  A grand jury.

At referral, the accused has met:
1. An advisory preliminary hearing before a hearing officer in which the defense no longer has discovery rights.

*As described in the Becker article.  
Law enforcement agents are not prohibited or discouraged from fully investigating both sides of a case.
Military law enforcement are  discouraged and prohibited from investigating the background and credibility of a complaining witness.
Federal public defender does not have to ask permission to interview a complaining witness.
Defense has to ask permission to interview a complaining witness. 
Federal public defender has their own investigators and experts on staff.
Defense has no investigators or experts on staff. 
Federal public defender has their own money to employ additional defense experts for a case.
Defense has to request the government appoint and fund experts – which requests can be denied by the government.
Federal public defender can subpoena witnesses for trial.
Defense has to request the government produce witnesses to testify for the defense – which requests can be denied.  Defense cannot subpoena witnesses.
Conviction in federal criminal court requires a unanimous jury.
Conviction in a military court requires 2/3 concurrence of as few as 5 court members in a GCM. 
The President and Congress are not altering or threatening to change the federal criminal justice system based on “unacceptable” conviction rates. 
The military justice system is being altered by the President and Congress, and threatened with more changes, if more prosecution “friendly” conviction rate statistics aren’t achieved. 



The sad truth is that the disparity described above isn't accidental; it's what these agenda-driven politicians are seeking.  Thank you, Mr. Becker, for being a voice on the other side of a very unbalanced narrative...


For more information about the military justice system, particularly cases alleging rape and/or sexual assault in violation of UCMJ Article 120, type “rape” or “sexual assault” into the search bar above the blog posts.  Also, see:


We offer free consultations for a case you may be involved in.  Just call us.

Thank you.    

By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, P.C.
http://www.militaryadvocate.com


Blog postscript: Attorney Frank J. Spinner and I (attorney Richard V. Stevens) are former active duty military lawyers (JAG). Our perspectives and advice, therefore, are based upon our experience as military defense lawyers and as civilian criminal defense lawyers practicing exclusively in the area of military law and military justice. This blog addresses issues in military law, military justice, military discipline, military defense, court-martial practice, the Uniform Code of Military Justice (UCMJ) and other military and/or legal topics. Nothing posted in this blog should be substituted for legal advice in any particular case. If you seek legal advice for a particular case, please contact The Law Offices of Richard V. Stevens and The Law Office of Frank J. Spinner for a free consultation. These military defense law offices are located in Northern Florida (Pensacola, Ft Walton, Destin, Eglin AFB, Hurlburt Field, Duke Field, Panama City, Tyndall AFB areas) and Colorado Springs, Colorado (FT Carson, Peterson AFB, Air Force Academy, Schriever AFB, Cheyenne Mountain Air Force Station, Buckley AFB areas), but our military defense law practices are worldwide – we travel to wherever our clients are stationed or serving and need us.