Sex Offenses Category Archives — Page 6 of 9 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Sex assault-alcohol blackouts-and memory

September 7, 2015 | The Law Office of Philip D. Cave

We do a lot of military sexual assault cases with alcohol involved. It is not unusual for a complaining witness to claim they were drunk, blacked out and didn’t consent.

First, if blacked out they can’t know they didn’t consent–it’s impossible if they were blacked out, rather than them exhibiting a convenient and selective memory.

Second, we know from medical science that a person can do a whole lot of things which does include the voluntary, and apparently consensual engagement is sexual activity. Here is an example, out of many, how a person can engage in a lot of thoughtful and physical activity and not remember it.

Quote of the day-week-year

July 27, 2015 | The Law Office of Philip D. Cave

Sixty years after Congress created the UCMJ to protect accused servicemembers from abusive and arbitrary punishment, a significant faction in Congress now believes it must be almost completely dismantled and restructured because is is not being used aggressively enough. Multiple federal organizations and a fair number of outside parties consider the notion of due process in student disciplinary hearings, the result of courage in the civil rights era, as an obstacle to be overcome or circumvented in the name of “accountability.” The federal government has used its formidable authority to shape institutional responses to sexual assault, but the aggressive rush to “fix” the problem subordinates notions of due process, truth-seeking, and even the presumption of innocence. Fueled by an underlying assumption that too few perpetrators are sufficiently punished, the poignant and emotionally-charged environment of sexual assault threatens otherwise broadly accepted principles of justice. And in that setting, it is difficult for anyone in a position of both power and publicity to argue for policies that will be seen as making it harder to punish rapists. Nonetheless, the “obligation to govern impartially is as compelling as [the] obligation to govern at all.”[1]

MAJOR ROBERT E. MURDOUGH, BARRACKS, DORMITORIES, AND CAPITOL HILL: FINDING JUSTICE IN THE DIVERGENT POLITICS OF MILITARY AND COLLEGE SEXUAL ASSAULT. 223 MIL. L. REV. 233 (2015).

[1] Berger v. United States, 295 U.S. 78, 88 (1935).

Worth the Read from Military Law Review

July 27, 2015 | The Law Office of Philip D. Cave

There are some interesting articles for military justice practitioners in the Summer 2015, MLR.

Barracks, Dormitories, and Capitol Hill: Finding Justice in the Divergent Politics of Military and College Sexual Assault
Rudderless: 15 Years and Still Little Direction on the Boundaries of Military Rule of Evidence 513
Open-Ended Pharmaceutical Alibi: The Army’s Quest to Limit the Duration of Controlled Substances for Soldiers

A Better Understanding of Bullying and Hazing in the Military

Worth the Read

July 16, 2015 | The Law Office of Philip D. Cave

New Developments in Criminal Law: Child Pornography and Appellate Review, by MAJ Jeremy Stephens.

THE ABUSE OF DISCRETION STANDARD OF REVIEW IN MILITARY JUSTICE APPEALS, by COLONEL JEREMY STONE WEBER.

Motive to fabricate-a short explanation

July 16, 2015 | The Law Office of Philip D. Cave

Regardless of the type of case, motive to falsely testify of a primary witness is almost always of some relevance. The recent case of Nappi v. Yelich, from the Tenth highlights that.

The Sixth Amendment’s confrontation right, which applies equally to defendants in state prosecutions, “means more than being allowed to confront the witness physically.” Davis v. Alaska, 415 U.S. 308, 315 (1974). It includes a right of cross-examination, which provides “the principle means by which the believability of a witness and the truth of his [or her] testimony are tested.” Id. at 316; see also Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) . . .. To be sure, a trial judge has discretion to limit or preclude inquiry into collateral, repetitive, or “unduly harassing” subjects. Davis, 415 U.S. at 316. But this discretion has limits and “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross‐examination.” Id. at 316‐17.

The state court’s conclusion that cross‐examination of the state’s main witness’ motive for testifying was a collateral matter was contrary to clearly established Supreme Court precedent. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1989) (ruling that preventing cross‐examination on a subject the “jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony” violated the defendant’s Confrontation Clause right); Brinson v. Walker, 547 F.3d 387, 392 (2d Cir. 2008) .

CAAF’s decision in Woods does not support MJIA

June 26, 2015 | The Law Office of Philip D. Cave

The Real Cost Of Having Commanders In Charge Of Military Justice

This article has appeared in Task & Purpose as a result of United States v. Woods, decided by the Court of Appeals for the Armed Forces on 18 June 2015.

Incredibly, a senior naval officer was appointed to be the president of a court-martial panel when in a questionnaire prepared when first told she’d be a court-martial member in the future, the member answered thus about the presumption of innocence.

Distinguish between volition and memory-lack of memory doesn’t mean lack of volition

February 22, 2015 | The Law Office of Philip D. Cave

The version of the facts contained in the majority opinion is far more convincing than are the facts contained in the record of trial.

It is not unusual for an appellate opinion to be selective in reciting the facts of a case relevant to the decision. This can be attributed to several factors, most of the factors are benign and unintended, sometimes a cynic might argue the facts cited are deliberately selective. But here is the relevant part of the dissent for counsel’s takeaway in alcohol related sexual assault cases. The noted confusion must be addressed with the fact-finder through evidence perhaps, and certainly through argument.

It appears to me that the parties at trial misunderstood the relationships between volitional behavior, consent, mistake of fact as to consent, intoxication, and lack of memory. The question is not whether the alleged victim remembers what happened, but whether she participated in the sexual activity of her own volition at a time when she had too much to drink. Chief Judge Everett‘s concurring comments United States v. Baran, 22 M.J. 265, 270 (C.M.A. 1986), are directly applicable to this case:

NCIS chief interviewed

December 2, 2014 | The Law Office of Philip D. Cave

Navy Times recently interviewed the Director of NCIS. Here is a question I found interesting and thought I’d share.

Q. There have been a number of recent cases in which inspector general investigations concluded NCIS agents weren’t following procedures. What are you doing to improve that?

A. I think if we have needed to we have tightened up quite a bit. I will give you an example: Some of the things we were cited for were actually minor deficiencies or violations of our own internal policies.

Being drunk and being incapacitated aren’t the same

November 1, 2014 | The Law Office of Philip D. Cave

Being drunk and being incapacitated aren’t the same – no matter how hard military sexual assault trainers try to convince you otherwise. Such training is not just wrong – it is – IMHO – knowingly false.

Which brings us, finally, to the drunk sex issue. So, is Sokolow suggesting that all women who say they were raped while they were drunk were not really raped? He is not. “If there’s a no, I don’t care if there’s alcohol involved, it’s rape. What I’m saying is the fact that a woman was drunk can’t be the sole criteria for whether she was raped or not,” Sokolow explains, “and frankly, a lot of schools were getting this wrong. There is a vast difference between drunk and incapacitated.”

Brett Sokolow, Meet the Man Telling Colleges How to Fix Their Rape Problem, The Cut, 21 October 2014.

Worth the read

August 5, 2014 | The Law Office of Philip D. Cave

has published a symposium – articles related to military justice, specifically sexual assault cases. Both sides will find something in the articles. Of particular interest are two articles: Major Seamone’s article about secondary affect on military justice practitioners from over exposure to sexual assault cases, and Colonel Schenk’s disagreement with the statistics and compilation of sexual assault statistics.

Major Evan R. Seamone, Sex Crimes Litigation as Hazardous Duty: Practical Tools for Trauma-Exposed Prosecutors, Defense Counsel, and Paralegals, 11 Ohio St. J. Crim. L. 487 (2014).

Lisa M. Schenck, Informing the Debate About Sexual Assault in the Military Services; Is the Department of Defense Its Own Worst Enemy?, 11 Ohio St. J. Crim. L. 579 (2014).