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Military lawyers confront changes as sexual assault becomes big news

Sep 21, 2013, 09:54 pm CDT

Comments

Here’s the version of the statute that Cornell says is current:

“(a) Rape.— Any person subject to this chapter who commits a sexual act upon another person by—
(1) using unlawful force against that other person;
(2) using force causing or likely to cause death or grievous bodily harm to any person;
(3) threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping;
(4) first rendering that other person unconscious; or
(5) administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct;
is guilty of rape and shall be punished as a court-martial may direct.”
...
“The term “sexual act” means—
(A) contact between the penis and the vulva or anus or mouth, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or
(B) the penetration, however slight, of the vulva or anus or mouth, of another by any part of the body or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.”

So penetration of the mouth by any part of the body is a sexual act that can be punished as rape. Interpreting that literally, putting your tongue in someone’s mouth could be rape. This, despite the fact that the law distinguishes a “sexual act” from “sexual contact” and has lesser offenses for abusive sexual contact. Touching someone’s hand could be sexual contact “if done with an intent to arouse or gratify the sexual desire of any person.”

That said, the lawyer quoted in the article makes it sound like lack of consent not being an element is defendant-unfriendly. I’d say that having lack of consent as an element is more prosecution-friendly than having unlawful force as an element instead.

“The term “force” means—
(A) the use of a weapon;
(B) the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or
(C) inflicting physical harm sufficient to coerce or compel submission by the victim.”

(6) Unlawful force.— The term “unlawful force” means an act of force done without legal justification or excuse.”

By Scales on 2013 08 27, 10:24 pm CDT

The U.S. Department of Defense reports a 34 percent increase in the number of estimated unwanted sexual contacts for fiscal 2012, as compared with 2010. That report is an estimate based on a survey of 22,792 active-duty service members and includes everything from groping to rape. The same survey found that 67 percent of military victims didn’t report the crime, compared with the 54 percent of sexual assault crimes that the U.S. Bureau of Justice Statistics says are unreported in the country as a whole.

This issue is deep very deep. The numbers are increasing, I believe, because they feel comfortable committing the acts. This starts at a very base level of respect or lack of respect for the men and women working with and for you.

When your day to day communication is disrespectful it leads to greater levels and deterioration of healthy boundaries. And it becomes a culture. But these matters also go into hate crimes as well.

I agree that the oversight of such matters needs to be done by those with Professional legal backgrounds, degrees, etc.

Why would you send in a Doctor to play judge and jury or any other professional that does not specialize in law to exact punishments and judgements dealing with legal issues?

Doesn’t make any sense.

By concernedcitizen on 2013 08 27, 11:04 pm CDT

“....the 4th U.S. Circuit Court of Appeals at Richmond, Va., upheld the dismissal, saying that Supreme Court precedent forbids civilian courts from interfering with matters of military discipline.”

Questions—anyone with the answers please reply:
1.  Isn’t the CAAF made up of civilians?
2.  After the CAAF, if the convicted cannot pay to go to the US Supreme Court, what is the official route for error coram nobis if not the federal courts which is also civilian?
3.  If not, then is it back to the trial court with error coram nobis (if probation is over?)
4.  Does anyone out there have a sample I can use?

SSG Carolynn MacDonald, USA, Ret.

By Carolynn MacDonald on 2013 08 28, 3:40 am CDT

This is a really disappointing article that is much too one-sided to add constructively to the dialogue on this vitally important issue.  Regrettably, it too much resembles little more than a thinly veiled press release for the Protect Our Defenders lobby.

Anyone who knows anything about how things get done in the military – and has reviewed the Supreme Court jurisprudence - understands that, given the military’s unique mission that has no counterpart in civilian society, its justice system needs to be commander-led.  You simply cannot parse out something so important to operational success as disicpline.  It is, and must be, commander’s business, and not sloughed off on some staff officer, lawyer or not, as bill in Congress that the article references would have it. 

One can only surmise that the complete lack of any military experience by the bill’s main sponsor (Sen Kristen Gillibrand) would lead her to think that creating yet another Washington bureaucracy and staffing it with lawyers is the way to solve a problem in the armed forces (or, for that matter, any problem)

Importantly, this is not what those serving want.  As a recent Pew survey shows, the rank and file of military households wants commanders to address the problem of sexual assault, and specifically reject the idea of Congress changing military law.  What is more is that surveys of the general public also show that military leaders enjoy far higher esteem than any group of lawyers, to include even the Supreme Court.

Moreover, the article doesn’t point out that the Pentagon survey data upon which the critics rely has now been thoroughly discredited http://online.wsj.com/article/SB10001424127887323582904578484941173658754.html

Still, if you do believe the data, it shows that a huge majority of women and, especially, men believe their commanders are doing “well” in addressing the issue of sexual assault.

Why would what military men think be so important?  Because if you accept the validity of the data you have to also accept that it shows that the majority of estimated sexual assualt victims to be men, not women.  You haven’t heard much about that because it doesn’t fit the narrative of a misogynistic military the critics desire. 

The data also shows that between 2006 and 2010, the commander-led system that the critics want to dismantle produced a 44% drop in sexual assaults, something the critics can’t seem to explain.  Any reasoned approach would require an explanation as to what happened in the military between 2010 and 2012 to spur the rise (which is still below the 2006 level) before making any changes.

In addition, the critics point to other nations (with smaller militaries and narrower responsibilities) that have eviscerated the commander’s role in discipline actions as “models’.  What they fail to tell you is that there is absolutely no evidence that doing so has helped ameliorate the incidence of sexual assault in their militaries at all.  Indeed, and in several instances, the number of sexual assault incidents is dramatically increasing.  Not suprising when you take the commander out of the disicplinary equation.

Moreover, even if the data is to be believed, it shows the problem in the armed forces is significantly less pronounced than in civilian society and, especially, on college campuses.  http://www.foreignpolicy.com/articles/2013/07/10/is_sexual_assault_really_an_epidemic

Actually, if the percentages listed in a 2012 CDC report were applied to the military, there would be more than 75,000 cases as opposed to the 26,000 the Pentagon survey estimated.  In truth, civilian society ought to try to model the military’s success. 

Finally, this needs to be said: what about the accused as vast resources flow to the prosecution?  Can they get a fair trial?  Are we sure, for example, that people of color are not being disproportionately charged?  Where is the great ‘Atticus Finch’ tradition of the ABA?

By Veteran on 2013 08 28, 4:25 pm CDT

Veteran, I totally agree wth everything you have stated.  One of my biggest concerns are “what about our accused”  from everything you read they are Guilty before ever having a chance to proof their case. I would love to see the stats on people of color being accused?  I would love to speak a little further with you because I know someone right now going through this and its unreal what’s going on during the process.  Please email me your personal email address. 

Thanks,
Candes

By Candes on 2013 09 28, 10:42 pm CDT

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Features

Military lawyers confront changes as sexual assault becomes big news

on September 1, 2013

Comments

Here’s the version of the statute that Cornell says is current:

“(a) Rape.— Any person subject to this chapter who commits a sexual act upon another person by—
(1) using unlawful force against that other person;
(2) using force causing or likely to cause death or grievous bodily harm to any person;
(3) threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping;
(4) first rendering that other person unconscious; or
(5) administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct;
is guilty of rape and shall be punished as a court-martial may direct.”
...
“The term “sexual act” means—
(A) contact between the penis and the vulva or anus or mouth, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or
(B) the penetration, however slight, of the vulva or anus or mouth, of another by any part of the body or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.”

So penetration of the mouth by any part of the body is a sexual act that can be punished as rape. Interpreting that literally, putting your tongue in someone’s mouth could be rape. This, despite the fact that the law distinguishes a “sexual act” from “sexual contact” and has lesser offenses for abusive sexual contact. Touching someone’s hand could be sexual contact “if done with an intent to arouse or gratify the sexual desire of any person.”

That said, the lawyer quoted in the article makes it sound like lack of consent not being an element is defendant-unfriendly. I’d say that having lack of consent as an element is more prosecution-friendly than having unlawful force as an element instead.

“The term “force” means—
(A) the use of a weapon;
(B) the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or
(C) inflicting physical harm sufficient to coerce or compel submission by the victim.”

(6) Unlawful force.— The term “unlawful force” means an act of force done without legal justification or excuse.”

By Scales on 2013 08 27, 10:24 pm CDT

The U.S. Department of Defense reports a 34 percent increase in the number of estimated unwanted sexual contacts for fiscal 2012, as compared with 2010. That report is an estimate based on a survey of 22,792 active-duty service members and includes everything from groping to rape. The same survey found that 67 percent of military victims didn’t report the crime, compared with the 54 percent of sexual assault crimes that the U.S. Bureau of Justice Statistics says are unreported in the country as a whole.

This issue is deep very deep. The numbers are increasing, I believe, because they feel comfortable committing the acts. This starts at a very base level of respect or lack of respect for the men and women working with and for you.

When your day to day communication is disrespectful it leads to greater levels and deterioration of healthy boundaries. And it becomes a culture. But these matters also go into hate crimes as well.

I agree that the oversight of such matters needs to be done by those with Professional legal backgrounds, degrees, etc.

Why would you send in a Doctor to play judge and jury or any other professional that does not specialize in law to exact punishments and judgements dealing with legal issues?

Doesn’t make any sense.

By concernedcitizen on 2013 08 27, 11:04 pm CDT

“....the 4th U.S. Circuit Court of Appeals at Richmond, Va., upheld the dismissal, saying that Supreme Court precedent forbids civilian courts from interfering with matters of military discipline.”

Questions—anyone with the answers please reply:
1.  Isn’t the CAAF made up of civilians?
2.  After the CAAF, if the convicted cannot pay to go to the US Supreme Court, what is the official route for error coram nobis if not the federal courts which is also civilian?
3.  If not, then is it back to the trial court with error coram nobis (if probation is over?)
4.  Does anyone out there have a sample I can use?

SSG Carolynn MacDonald, USA, Ret.

By Carolynn MacDonald on 2013 08 28, 3:40 am CDT

This is a really disappointing article that is much too one-sided to add constructively to the dialogue on this vitally important issue.  Regrettably, it too much resembles little more than a thinly veiled press release for the Protect Our Defenders lobby.

Anyone who knows anything about how things get done in the military – and has reviewed the Supreme Court jurisprudence - understands that, given the military’s unique mission that has no counterpart in civilian society, its justice system needs to be commander-led.  You simply cannot parse out something so important to operational success as disicpline.  It is, and must be, commander’s business, and not sloughed off on some staff officer, lawyer or not, as bill in Congress that the article references would have it. 

One can only surmise that the complete lack of any military experience by the bill’s main sponsor (Sen Kristen Gillibrand) would lead her to think that creating yet another Washington bureaucracy and staffing it with lawyers is the way to solve a problem in the armed forces (or, for that matter, any problem)

Importantly, this is not what those serving want.  As a recent Pew survey shows, the rank and file of military households wants commanders to address the problem of sexual assault, and specifically reject the idea of Congress changing military law.  What is more is that surveys of the general public also show that military leaders enjoy far higher esteem than any group of lawyers, to include even the Supreme Court.

Moreover, the article doesn’t point out that the Pentagon survey data upon which the critics rely has now been thoroughly discredited http://online.wsj.com/article/SB10001424127887323582904578484941173658754.html

Still, if you do believe the data, it shows that a huge majority of women and, especially, men believe their commanders are doing “well” in addressing the issue of sexual assault.

Why would what military men think be so important?  Because if you accept the validity of the data you have to also accept that it shows that the majority of estimated sexual assualt victims to be men, not women.  You haven’t heard much about that because it doesn’t fit the narrative of a misogynistic military the critics desire. 

The data also shows that between 2006 and 2010, the commander-led system that the critics want to dismantle produced a 44% drop in sexual assaults, something the critics can’t seem to explain.  Any reasoned approach would require an explanation as to what happened in the military between 2010 and 2012 to spur the rise (which is still below the 2006 level) before making any changes.

In addition, the critics point to other nations (with smaller militaries and narrower responsibilities) that have eviscerated the commander’s role in discipline actions as “models’.  What they fail to tell you is that there is absolutely no evidence that doing so has helped ameliorate the incidence of sexual assault in their militaries at all.  Indeed, and in several instances, the number of sexual assault incidents is dramatically increasing.  Not suprising when you take the commander out of the disicplinary equation.

Moreover, even if the data is to be believed, it shows the problem in the armed forces is significantly less pronounced than in civilian society and, especially, on college campuses.  http://www.foreignpolicy.com/articles/2013/07/10/is_sexual_assault_really_an_epidemic

Actually, if the percentages listed in a 2012 CDC report were applied to the military, there would be more than 75,000 cases as opposed to the 26,000 the Pentagon survey estimated.  In truth, civilian society ought to try to model the military’s success. 

Finally, this needs to be said: what about the accused as vast resources flow to the prosecution?  Can they get a fair trial?  Are we sure, for example, that people of color are not being disproportionately charged?  Where is the great ‘Atticus Finch’ tradition of the ABA?

By Veteran on 2013 08 28, 4:25 pm CDT

Veteran, I totally agree wth everything you have stated.  One of my biggest concerns are “what about our accused”  from everything you read they are Guilty before ever having a chance to proof their case. I would love to see the stats on people of color being accused?  I would love to speak a little further with you because I know someone right now going through this and its unreal what’s going on during the process.  Please email me your personal email address. 

Thanks,
Candes

By Candes on 2013 09 28, 10:42 pm CDT

Add a Comment

We welcome your comments, but please adhere to our comment policy.

Commenting is not available in this channel entry.