Court-Martial Trial Practice Blog
We are all familiar of Congressional and command efforts to address military sexual assaults. Many of the revisions to the UCMJ and the MCM flowing from these efforts are appropriate, reasonable, or meaningless.
However, what does appear consistent is the failure of Congress to recognize that it has a concomitant duty to the accused to ensure that his trial is fair both in procedure and substance. Unlike the congressional committees on the judiciary, the committees on the armed services have a more direct and at times intrusive influence on the military judicial system once enacted. For example, the controls the Congress has on United States Attorneys (USA) and federal judges are much more limited than the direct and palpable influence of Congress on the commanders, prosecutors, and judges in the military justice system. We are all aware of the perceptional punitive actions taken against two senior Air Force commanders for decisions in sexual assault cases, the results of which certain members of Congress disliked. This is because military participants in the military justice system are subject to Congressional control over their promotions and in some cases their duty assignments. Not so the USA.
The concern, of course, is the potential for false accusations of sexual assault and congressional hands-on interference in an effort to prejudge and require convictions regardless of the complaints merit. That may seem to be hyperbole on my part, but that is very clearly my perception and the perception of many others who are involved in the system on a daily basis. I have said before that the failure to address the potential for false accusations harms actual victims, the accused, the accused’s wife, the accused’s children, and military unit morale.
So, a lengthy introduction to a scholarly piece worth the read. You can access, Yager, Reggie D., What’s Missing from Sexual Assault Prevention and Response (April 22, 2015). Available at SSRN: http://ssrn.com/abstract=2697788. It appears the author is an Air Force judge advocate and the manuscript is a work in progress.
This article examines the sexual assault prevention and response (SAPR) policy in the military over the last few years. Although focused primarily on the military policy, most of the concerns addressed in this article are equally applicable to how colleges and universities are dealing with SAPR. The article argues that civilian and military leadership have neglected to protect the wrongly accused. There are three sections to this article. The first section explains why we should be concerned about the wrongly accused, using examples of wrongful convictions, false accusations, the reasons they occur, and some research about the frequency of the problem. The next section discusses why we have not done so, demonstrates that false accusations are not rare, and exposes the significant flaws with the research that is driving our unbalanced policy. The last section identifies specific flaws with policy, the justice process, and with SAPR training and offers recommendations for how we can improve prevention and response while simultaneously protecting both victims and the wrongly accused.