rape Tag Archives — Court-Martial Trial Practice Blog

Up periscope!

December 18, 2011 | The Law Office of Philip D. Cave

Hometown Annapolis reports: Evidence against a midshipman charged with raping a classmate was strong enough to warrant a court-martial, Naval Academy officials said Tuesday.

Military.com reports on a rather lugubrious incident at Fort Lee. The Air Force is investigating a photo that appeared online depicting Airmen posing with an open coffin that contains another Airman playing dead with a noose around his neck, the Air Force Times newspaper reported Wednesday.

Fort Bragg Patch reports: The Army’s Criminal Investigation Command removed explosives and military weapons from the Fayetteville soldier’s home [while serving a domestic violence protective order.

ACCA and LIO’s

October 29, 2010 | The Law Office of Philip D. Cave

United States v. Moore, decided 28 October 2010.

Appellant alleges, inter alia, that assault with intent to commit rape is not a lesser-included offense of rape under United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) and that his conviction should be set aside. We agree, and provide relief in our decretal paragraph. Because we decide the case on the basis of this assignment of error, we do not consider appellant’s other allegations.

Also a quick note about “notice.”

Pernell-Bragg-rapes case sitrep

October 27, 2010 | The Law Office of Philip D. Cave

Trial is scheduled to begin 8 December 2010 at Fort Bragg.

The Judge has decisions pending on a suppression motion and a motion to dismiss an attempted rape charge for failure to state an offense.

As FayObserver ‘observes:’

Peacekeeping and sex offenses

September 29, 2010 | The Law Office of Philip D. Cave

Melanie O’Brien’s thesis for her PhD at Nottingham Univ. is online.

National & International Criminal Jurisdiction Over United Nations Peacekeeping Personnel for Gender-Based Crimes Against Women.

This thesis seeks to determine the most effective jurisdiction for criminal accountability for UN peacekeeping personnel who engage in sexual exploitation and abuse of women, and other conduct amounting to violence against women. As criminalisation is sought as the appropriate method of prevention and punishment of such conduct, it is first examined why criminalisation is necessary. The impact of sexual exploitation and abuse (SEA) on women in the territories in which peace operations are located is detailed as harms in the form of violations of the rights of these women. Alternatives to criminal sanctions are then considered, in particular the actions of the UN towards prevention and prohibition of SEA. While such regulations are necessary, they are ultimately inadequate in preventing and punishing SEA. Included is an assessment of the Draft Convention on Criminal Accountability of UN Officials and Experts on Mission, the adoption of which would support criminalisation.

AFCCA denies a new trial

September 15, 2010 | The Law Office of Philip D. Cave

The Air Force Court of Criminal Appeals has issued an opinion in United States v. Hull.

The issues on appeal are: whether the staff judge advocate (SJA) erred by advising the convening authority (CA), pursuant to Rule for Courts-Martial (R.C.M.) 1106, that no new trial was warranted and whether the CA erred by failing to order a new trial despite the SJA’s acknowledgement that the appellant had presented new evidence that fell within the parameters of R.C.M. 1210. Further, the appellant filed a petition for a new trial pursuant to Article 73, UCMJ, 10 U.S.C. § 873.

AFCCA denied relief on the merits of the appeal and denied a new trial. AFCCA reasoned that even if the information was newly discovered (AFCCA was not certain it could not have been obtained during pretrial preparations), the evidence would not,

NMCCA sets aside a Article 120 case for instructional error

August 19, 2010 | The Law Office of Philip D. Cave

In the United States v. Jones the facts cited by the court show a consent defense. However the defense counsel did not request an instruction on the affirmative defense and the military judge did not give one. There being no evidence of an affirmative waiver the findings and sentence were set aside.

A military judge has a sua sponte duty to instruct the members on an affirmative defense if it is reasonably raised by the evidence. United States v. McDonald, 57 M.J. 18, 20
(C.A.A.F. 2002). Failure by the defense counsel to request the instruction does not waive the error. United States v. Brown, 43 M.J. 187, 189 (C.A.A.F. 1995)(citing United States v. Taylor, 26 M.J. 127, 129 (C.M.A. 1988). Failure by the military judge to instruct on an affirmative defense presents a constitutional error which must be tested for prejudice. For such an error to be deemed harmless beyond a reasonable doubt, the Government must prove that the members would have reached the same verdict absent the error. Neder v. United States, 527 U.S. 1, 19 (1999).

We agree with the appellant that the affirmative defense of consent was reasonably raised by the appellant’s sworn testimony. As noted above, the appellant posited a scenario in which the purported victim, Cpl B, was an unambiguously willing participant in the sexual contact alleged, ostensibly even the instigator and aggressor.

NMCCA sets aside a rape conviction

July 6, 2010 | The Law Office of Philip D. Cave

United States v. Ruiz should sound familiar to most defense counsel – the basic facts that is. An adultery case becomes a rape allegation.

In particular I recommend:

Reporting the Alleged Rape
On the night of the alleged rape, after returning to the barracks, AN P did not report the rape or tell anyone what happened. Id. at 548. Seaman (SN) M testified, contrary to AN P’s testimony, that the next day, a smiling AN P pulled him aside, told him “we did it,” and explained that she and the
appellant had feelings for each other. Id. at 1146. In the next few days, AN P discovered that rumors were spreading about her being in a hotel room with the appellant. Id. at 552, 570, 592. SN C testified that he had previously counseled AN P when she told him she “liked” the appellant, a married man. Id. at 551, 676, 688. When he confronted her with the new rumors and she explained her version of events, he reported it to the command. Id. at 683. AN P testified that she would not report it because she was afraid she would get into trouble or be kicked out of the Navy for being in a hotel room with a married man. Id. at 552-55, 572, 683. AN P testified that about a week after the alleged rape, upon learning she would not get in trouble as long as she was not “cooperating” with the appellant, she reported the incident, when confronted by a SAVI advocate, a chief, and a member of law enforcement. Id. at 572. The manner in which the rape was reported raises further doubt as to why AN P made the accusation.

Pernell update

June 1, 2010 | The Law Office of Philip D. Cave

FayObserver reports that:

A Fort Bragg soldier accused of rape and break-ins on post, as well as in Cumberland County, is due in court Wednesday for an arraignment hearing.

Aaron M. Pernell, 22, of Tulsa, Okla., is charged by the military with two counts of rape, one count of attempted rape, one count of assault consummated by battery, two counts of burglary and one count of housebreaking, according to a release from the 82nd Airborne Division.

Up periscope WE 300510

June 1, 2010 | The Law Office of Philip D. Cave

Air Force Times reports that:

Inexperienced operators of a U.S. drone ignored or downplayed signs that Afghan civilians were in a convoy blasted in a deadly American missile attack earlier this year, a military report released Saturday said.

While Washington Post reports that:

[Breaking]More on the West Point rape case

May 27, 2010 | The Law Office of Philip D. Cave

recordonline.com reports that:

United States Military Academy cadet has been convicted of rape in military court.
The judge in the court-martial has found Cadet Kyle C. Newman guilty on one charge of rape and one count of indecent conduct.
Newman was facing court-martial on two counts of rape and one count of indecent conduct. He had pleaded not guilty on those counts. On Tuesday, he pleaded guilty to three violations of a lawful general order of the Uniform Code of Military Justice, admitting to leaving post and fraternizing with a freshman cadet.

recordonline.com reports that: