Sex Offenses Category Archives — Court-Martial Trial Practice Blog Published by International Military Lawyer

A proposal for a new enumerated Article 134(1)(2) offense

July 4, 2023 | The Law Office of Philip D. Cave

A proposal that a military defense lawyer might face in the future. LtCol Greg Curley, Exploitation. 230 Mil. L. Rev. 421 (2023). The author proposes the adoption of an enumerated offense under UCMJ Art. 134, which he suggests would criminalize “Precursor Behaviors to Sexual Assault.” As part of the offense, he also suggests what most of us would consider a service-connection requirement. He suggests,

Exploitation is a separate and distinct offense from a sexual assault, and both the exploitation and the consummated offense that was its object may be charged, tried, and punished. The commission of the intended offense may satisfy the intent element of the exploitation charge.

He does not address whether the offense should be labeled a lesser included offense, the potential for multiplicity questions, or whether the acts of the new offense are res gestae acts that may be separately punished. This will be an area of litigation for military defense counsel.

Regrettable errors by SVC and TC

May 15, 2022 | The Law Office of Philip D. Cave

Are military law enforcement investigations complete, thorough, and unbiased? It depends. The MCIO leadership and agents will tell you they are. Our experience over the years both as military defense counsel and military prosecutors is that investigations can be incomplete, with leads not followed, evidence not retrieved, and bias in the reports submitted to prosecutors and the command. For example, the reports tend to focus on the bad things about you and ignore what might be helpful to you or your case. We call these instances of biased investigations as affected by confirmation bias. Many times, this doesn’t make a lot of difference. But, in sexual assault cases, a biased and incomplete investigation can lead to problems for the defense—and also for the prosecution. The recent Court of Appeals for the Armed Forces (CAAF) decision in United States v. Horne is an example of how things can go wrong and, in your case, might create serious problems if something similar happened during your investigation.

According to the appellate decisions, the special victim counsel (SVC) and the trial counsel (TC) tried to discourage investigators from interviewing a witness. It worked for a while during which time it appears the witness had a less clear memory of events. The TC thought the witness might have “exculpatory” information which they are obligated to disclose to the defense and which might be helpful to the accused.

The Air Force Court of Criminal Appeals (AFCCA) decision has an extensive review of the facts and circumstances of what happened. Ultimately, the Air Force court and CAAF decided while it was wrong, there was no prejudice against the accused. This case represents how a prepared and aggressive military defense lawyer can help protect you and the record. Sadly, this could happen to you. It is not clear if the SVCs and TCs will learn anything from this case to study their practices and comply with the law and ethics rules. We shall see. The CAAF has these words,

“Believe the victim”–encouraging a presumption of guilt?

September 25, 2021 | The Law Office of Philip D. Cave

For your reading. R. Michael Cassidy, Character, Credibility and Rape Shield Rules. RESEARCH PAPER 542, Boston College Law School, October 8, 2020.

Cassidy’s introduction notes the attention sexual assaults have received over recent years in reference to Harvey Weinstein, Justice Kavanaugh, and even then VP Biden. He goes on to say that,

“It is a tautology to say “We believe survivors,” because the complainant is only a survivor if her claim of victimization is truthful. “The war cry “believe women” is seen by some as a necessary corrective to a historic injustice, and by others as dangerous ideological orthodoxy if “believe women” becomes “believe all women.”

Can you impeach the jury and their verdict

June 4, 2021 | The Law Office of Philip D. Cave

What, if anything, can you as military defense counsel do if you suspect some shenanigans during panel member deliberations?

Military Rule of Evidence 606 states the basic rule against questioning the panel members during or after the trial about what went on during deliberations.

Prohibited Testimony or Other Evidence. During an inquiry into the validity of a finding or sentence, a member of a court-martial may not testify about any statement made or incident that occurred during the deliberations of that court-martial; the effect of anything on that member’s or another member’s vote; or any member’s mental processes concerning the finding or sentence. The military judge may not receive a member’s affidavit or evidence of a member’s statement on these matters.

Prior complaints in sexual assault cases.

October 20, 2020 | The Law Office of Philip D. Cave

At least in the courtroom, we act hastily when we conclude that the decisions of prosecutors and jurors can be based on presumptively believing sexual assault complainants. On the contrary, the presumption of innocence and the government’s burden of proof beyond a reasonable doubt in all criminal cases remind us that jurors have an obligation to weigh the credibility of accusers carefully, and indeed that a defendant must be given leeway to cross examine alleged victims to establish that they may be mistaken in their memory of historical events, that they might have a motive to fabricate claims, or that their perception may have been clouded by alcohol or narcotics. All members of society must be conditioned to listen with care and compassion when complainants bring forth accusations of sexual assault, so that we do not apply subconscious stereotypes or biases to reflexively discredit them. But as the “Me Too” movement grows, it is also essential that bedrock protections for the accused are not eroded in a way that predetermines a defendant’s guilt.

Most rape cases are not “whodunits” where identity is an issue. They involve interactions between two or more people who are known to each other from previous interactions-so called “acquaintance rape” situations-where the issue is what happened, not by whom. Sexual assaults usually occur in private, it is rare that they are witnessed by third-parties, and alleged attacks often leave little medical evidence or physical injury. The determinative issues in these types of rape cases are the victim’s consent and the defendant’s mens rea. Where there are no injuries and the defense is either non-occurrence or consent, the credibility of the accuser is especially central to the jury’s verdict.

Cassidy, R. Michael, Character, Credibility and Rape Shield Rules (October 8, 2020). GEO. J. L. & PUB. POL’y, Legal Studies Research Paper No. 542, at 2-3. [[1]]

Grazioplene redux

July 9, 2020 | The Law Office of Philip D. Cave

CNN reports,

See also, https://connectingvets.radio.com/articles/retired-army-general-james-grazioplene-stand-trial-rape-charges-army-dismissed

https://taskandpurpose.com/news/retired-army-general-rape-charges

Motive to lie

June 20, 2020 | The Law Office of Philip D. Cave

We know that some people lie about being sexually assaulted.

We know that one of the reasons–motives–or as psychologists say “the secondary gain,” is to protect a marriage or relationship.

We know that some women are like men, they cheat on their spouse.

Note of SOR

August 18, 2019 | The Law Office of Philip D. Cave

From Prof. Doug Berman’s excellent Sentencing Law & Policy.

Four+ years ago as noted in this post, the US Supreme Court issued a short per curiam summary reversals in Grady v. North Carolina, No. 14-593 (S. Ct. March 30, 2015) (available here), in which the Court clarified and confirmed that the Fourth Amendment is applicable to sex offender monitoring. That case was remanded back to the state courts, and late last week there was a major ruling by the Supreme Court of North Carolina in North Carolina v. Grady, No. 179A14-3 (N.C. Aug 16, 2019) (available here). This split ruling establishes that persons other than Torrey Grady will benefit from the application of the Fourth Amendment in this setting.

Confirmation Bias and Other Systemic Causes of Wrongful Convictions

July 22, 2019 | The Law Office of Philip D. Cave

Confirmation Bias and Other Systemic Causes of Wrongful Convictions: A Sentinel Events Perspective,

By D. Kim Rossmo and Joycelyn M. Pollock.

Their study suggests that 37% of wrongful convictions result from confirmation bias.

Affirmative defenses–Macdonald trailers?

June 21, 2019 | The Law Office of Philip D. Cave

No. 19-0051/AR. U.S. v. Korey B. Kangich. CCA 20170170. On consideration of the granted issue, 78 M.J. 304 (C.A.A.F. 2019), the judgment of the United States Army Court of Criminal Appeals, United States v. Kangich, No. 20170170 (A. Ct. Crim. App. Sep 27, 2018) (unpublished), and the opinion of this Court in United States v. McDonald, __ M.J. __ (C.A.A.F. Apr. 17, 2019), we conclude that because the affirmative defense of mistake of fact as to consent applies only if the mistake is reasonable as well as honestly held, the military judge did not err. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

This case does not appear on ACCA’s website. LEXIS has the case number as 20170170, and CAAF granted the following issue.

WHETHER THE MILITARY JUDGE ERRED IN APPLYING A NEGLIGENT MENS REA TO MAKE OTHERWISE LAWFUL CONDUCT CRIMINAL.