Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

I saw this story during this past week and I have to admit, that it made my stomach turn.  Despite the increased interest some in Congress and in the Pentagon have shown in how accusations of rape by female members of the military are treated, women can still jeopardize their careers and their mental well-being if they bring charges against their alleged attackers.

‘”For roughly 30 hours over several days, defense lawyers for three former United States Naval Academy football players grilled a female midshipman about her sexual habits. In a public hearing, they asked the woman, who has accused the three athletes of raping her, whether she wore a bra, how wide she opened her mouth during oral sex and whether she had apologized to another midshipman with whom she had intercourse “for being a ho.”’ New York Times

While I understand that defense attorneys must defend their clients to the best of their ability, and that defendants are innocent until proven guilty, how many legitimate victims of sexual crimes in the military would come forward when they can be subjected to 30 hours of disgusting grilling that may not be allowed in a criminal court outside of the military?  It can be argued that part of the problem in dealing with sexual crime allegations is the use of Article 32 proceedings, under military law,  which are used to determine if a case should go to a court-martial.

“The aggressive tactics on display this month and last are part of a case that has generated intense public scrutiny and raised alarms about what are called Article 32 proceedings, which help determine whether cases are sent to courts-martial. Article 32 hearings permit questions not allowed in civilian courts and can include cross-examinations of witnesses so intense that legal experts say they frighten many victims from coming forward.” New York Times

In the case of the Naval Academy student noted above, the military judge who is handling the charges will not make the decision whether a court-martial should be held.  The judge forwards the case to the superintendent of the Naval Academy and Vice Admiral Michael H. Miller will make what many would consider a judicial decision and decide if the case should be tried.

Does it make sense that a third-party, who in many cases is the commanding officer of the parties involved and who is not involved in the Article 32 proceedings, can decide if defendants are brought to trial?  Would it be a concern to female victims that the vast majority of the commanding or supervising officers who are making these decision,  are men?

The military has a spotty history in taking care of this sexual assault crisis.  The following case with the Air Force is just one example how the system can be tilted against female victims.

“The Defense Department says that 68 percent of sexual assault cases were sent to court-martial last year, compared with 30 percent in 2007.  But those increases have been accompanied by a series of controversies that have roiled the system, including one at Lackland Air Force Base in Texas in which more than 40 female trainees were abused by their instructors, as well as the arrest in May of the director of the Air Force’s sexual response unit, Lt. Col. Jeffrey Krusinski, for what the police said was his groping of a woman he did not know in a parking lot. A recent Pentagon survey found that an estimated 26,000 sexual assaults took place in the military last year, up from 19,000 two years before.” New York Times

There is some hope in the future for all victims of sexual abuse in the military.  In the instant case, the victims attorney has filed a federal lawsuit in an attempt to remove the superintendent’s jurisdiction over this case.   There has also been some movement in amending or reforming Article 32 hearings to afford rape victims more protection.

“The Joint Service Committee on Military Justice, which reviews potential changes to military law, is considering a proposal that would give sexual assault victims in Article 32 hearings new protections to shield them from the kind of questioning the midshipman experienced”  New York Times

We will await the results of the Joint Service Committee’s review and see if legitimate reforms are proposed and instituted.  I believe the Senate hearings held in June of this year may help hasten the reforms that are needed to protect all victims of sexual assault in the military.  The proof will be in the reforms that actually come out of the Senate hearings and the Pentagon’s review process.

Do you think that a supervising officer should have the power to make a judicial decision on whether a criminal case should or should not go to trial?  What reforms do you think are necessary to allow full justice for any victim of sexual assault in the military?

Additional Resources:  Uniform Code of Military Justice;  Article 32 of the UCMJ.