Before leaving the military and becoming a civilian litigator, I served in the Army as one of its twenty-four world-wide Special Victim Prosecutors (“SVPs”). The Army established the SVP position in 2009 and selected individuals to become SVPs based on their experience and ability in the courtroom. The SVP’s mission is to help prosecute all rape and sexual assault cases in each of their assigned geographic locations. While serving in the Army, I prosecuted rape and other sex-related offenses at Fort Stewart, GA, Fort Riley, KS, Fort Leavenworth, KS, and in Afghanistan.
Despite having served as a prosecutor, I am concerned at the deterioration of Constitutional due process afforded to service members accused of sexual assault. Congress has attempted to overhaul the military justice system, and I applaud them for tackling this topic of immense importance. However, although undoubtedly motivated by a sincere desire to assist victims of horrible crimes, our legislators have potentially gone too far in their revisions of the protections afforded to an Accused by our Constitution.
Our criminal justice system is founded on the constitutional principle that one is “Innocent until Proven Guilty.” Contributing to the protections given to an Accused in our Constitution by our Founding Fathers was their belief in the statement of English jurist William Blackstone: “It is better that ten guilty persons escape than that one innocent suffer.”
Not satisfied with this ratio, Benjamin Franklin multiplied it by a factor of ten, when he pronounced “It is better 100 guilty Persons should escape than that one innocent Person should suffer.” Perhaps even more forcefully, John Adams made the impassioned plea “It is more important that innocence should be protected, than it is, that guilt be punished,” when representing British soldiers in a politically charged trial after the Boston Massacre.
Does the current Congress still agree with these foundational Constitutional principles when enacting legislation that limits constitutional due process? It is unclear.
Congress is correct in its belief that historically the military did not prosecute sexual assault allegations as vigorously as it should have. However, the reforms enacted by Congress in the annual National Defense Authorization Acts have swung the pendulum too far in the other direction, potentially depriving service members of their ability to obtain a fair trial.
I stress that these reforms, individually, might have been justified. However, collectively, they have created a system in which an Accused is potentially deprived of a fair trial. The potential failure of the current system to afford constitutional due process to an Accused is no secret. The Subcommittee of the Judicial Proceedings Panel published its “Report on Barriers to the Fair Administration of Military Justice in Sexual Assault Cases” in May 2017, and the report highlighted the system’s unfairness and discussed the problematic reforms referred to in this article. Despite this damning report, Congress has taken little or no action on it.
Examples of reforms to the military justice system include:
1) no longer requiring purported victims to testify at preliminary hearings,
2) no longer allowing service members to utilize the “Good Soldier defense” (which allowed a Soldier to present evidence of his general good character and valorous service in combat to prove he could not have committed the alleged crime),
3) greatly expanding the definitions of what constitutes sexual assault and abusive sexual contact,
4) requiring service members to receive sexual assault training that unfortunately is at times legally incorrect: namely, that one cannot consent to sexual intercourse if one has had one alcoholic beverage,
5) making the prosecution of sexual assault allegations more difficult by allowing purported victims to receive transfers from unpopular duty stations like Kansas to more attractive assignments like Hawaii,
6) depriving commanders of their ability to overturn convictions when not convinced that the Accused was guilty,
7) creating and giving purported victims their own independent legal representation (Special Victim Counsel), who in turn at times, prevent prosecutors and defense counsel from interviewing the alleged victim in preparation for trial, and
8) depriving defense attorneys the ability to obtain a purported victim’s mental health records, even when the constitution would otherwise require it.
These reforms, when coupled with the fact that a military Accused is already in a precarious position given that a military prosecutor does not need a unanimous jury to convict, as does a civilian prosecutor, have caused the scales of justice to become unbalanced in potential violation of the Constitution.
Commanders now refer seemingly every allegation of sexual assault, no matter how tenuous, to a court-martial because they are afraid that their careers would otherwise be terminated. The threat of career termination is not an empty one. Congress refused to confirm then Lieutenant General Susan Helms as Vice Commander of the Air Force Space Command because she did not handle a sexual assault case like certain Senators wanted her to. Lt. General Helms then retired.
The decision to prosecute arguably weak cases is highlighted by the fact that the military often prosecutes cases even though civilian jurisdictions, which have concurrent jurisdiction over the alleged crimes, determined that no probable cause exists and have declined to prosecute. Commanders also continue to refer cases to court-martial even after neutral and detached preliminary hearing officers have made findings that no probable cause exists. This is problematic on a variety of fronts, including, 1) potentially prosecuting an innocent service member and 2) forcing prosecutors to potentially violate their ethical responsibility to not prosecute cases that are not supported by probable cause.
Perhaps Congress’ most problematic reform of constitutional protections was when it revised Military Rule of Evidence 513, which governs the discoverability of a purported victim’s mental health records. Previously, this statute did not allow defense counsel to obtain these records unless a judge determined that the defense request met one of eight enumerated exceptions.
One of these exceptions allowed the defense to obtain mental health records, when “constitutionally required.” President Obama and Congress revised the rule to no longer include the “constitutionally required” exception. Obviously, such an overt, brazen deprivation of evidence that is constitutionally required to be supplied to the defense is itself unconstitutional.
Recently, the Air Force court-martial of United States v. Vargas highlighted what has become of the military justice system. In Vargas, several prosecutors and Special Victim Counsel collaborated to get what they perceived as a defense-oriented judge removed from hearing any cases involving sexual assault. Why the Air Force allowed this judge to be removed from sexual assault cases is unclear; however, he was ultimately removed from presiding over the Vargas’ court-martial.
Vargas was subsequently convicted of sexual assault and sentenced to 29 years of confinement. The Air Force appellate court, however, unsurprisingly, viewed the removal of the trial judge with disdain and reversed Vargas’ conviction. Thankfully, Congressional reforms have not yet prevented appellate courts from applying the Constitution and ensuring due process is afforded to an Accused.
In times such as these, when political pressure is great, it is imperative that prosecutors remember the sage guidance of the Supreme Court, when it stated that the role of the prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”
The #MeToo movement has justifiably engendered a passionate uprising. Let us not forget, however, John Adams’ passionate plea: “It is more important that innocence should be protected than it is, that guilt be punished.”