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Life After Acquittal – the System’s Revenge

For the servicemember acquitted at a military court-martial for any offense, but particularly of sexual assault charges, the sense of vindication is often short-lived. Many find themselves convicted of related or even unrelated, minor misconduct and face a seemingly endless battle of administrative consequences.

Aside from the military’s other administrative measures to end the member’s service (including bars to re-enlistment, negative evaluations, and administrative separation), there exist many additional repercussions that the member may not discover until months or even years later.

First, any jobs that require a background search will reveal a titling and indexing opinion by law enforcement from the investigation. Even if the member was acquitted, the records check will show that there was a “founded” allegation against him for sexual assault. That records check exists in federal databases and sometimes in one or more state databases, depending on how the case was investigated for 40 years. The fact that the case ended in an acquittal does not change the titling and indexing opinion. A titling and indexing opinion is a law enforcement function that occurs before the military makes a charging decision to go to court-martial. Titling occurs during the investigation and the case agent requests the titling opinion, often referred to as the “opine” from the judge advocate that is responsible for that unit’s potential cases. The threshold for the titling opinion is merely “probable cause,” one of the lowest standards recognized in the law. The judge advocate reviews the investigation and determines which violations of the UCMJ there are probable cause to believe occurred. Most often, the judge advocate will give the probable cause opinion based solely off the word of the complaining witness; if there is a witness that says the crime occurred, even if the complaint itself seems far-fetched and is not supported by any other evidence, the judge advocate will most typically give the probable cause opinion.

The consequence to a titling for a “founded” allegation of sexual assault is that even if the case was dismissed before trial or the trial resulted in acquittal, there is no direct impact on what a potential employer finds on a records check. Few employers wish to give jobs to those with a “founded” allegation of sexual assault. The result for veterans is not just lost opportunity but often un-employability or at the very minimum under-employment. The positions that require records check range from law enforcement to any job that requires a security clearance. Veterans with “founded” allegations in the database end up taking positions far beneath their education and experience to try to make a living wage.

The second consequence for that titling and indexing legal opinion is that the DNA sample that law enforcement collected during the booking procedures becomes required for processing into CODIS. CODIS stands for the Combined DNA Indexing System or the federal repository for DNA samples for known persons (including criminals and other persons by virtue of their jobs or positions who have DNA samples collected from). CODIS is used to provide an ever-widening sample of the population from which statistical analyses are drawn in other law enforcement investigations. For instance, when DNA examiners find a “match” and wish to use statistics to explain the chances for anyone else being the source for the DNA, CODIS assists them. A report generated from comparing the breakdown of DNA might say, for instance, in a sample of persons with European ancestry, the chances that someone other than [insert suspect’s name] is the source for the DNA found are 1 in 200 Billion. All samples inputted into CODIS assist in making those statistical comparisons. CODIS samples are also used to exclude known standards for criminal investigations where there is no suspect. Running the sample through CODIS might generate a “hit” for someone that has previously engaged in criminal activity or has their sample in the system for other reasons (such as public service).

Many citizens would not think much of their DNA being left in CODIS because generally speaking the expectation is that people that handle DNA do so in a professionally and scientifically sound manner. But DNA, like any issue that requires users to handle it, is only as reliable as those entrusted to protect and safeguard it. Cases where DNA has been mishandled and result in a “hit” for someone unrelated to the suspected crime rise each year. In a fairly recent case out of California, first-responders failed to change their gloves between treating patients. The first patient was the victim of a crime and “luckily” was being treated in a hospital with a firm alibi when the crime that his first-responders reached next had occurred. When they failed to change their gloves, they contaminated the crime scene and the victim of the crime they treated became the first suspect. DNA contamination at crime scenes is not the only potential source for contamination. DNA contamination also occurs in the handling of cases in evidence rooms and in labs including contamination between and among DNA samples from the same case, contamination from the DNA analyst to a DNA sample, contamination among samples in different cases, contamination of DNA samples from lab administrative staff who do not work directly on cases, and some instances of unidentified “exogenous contamination.”

As is typical of most bureaucracies, the processes to remove titling / indexing and DNA from CODIS presents a labyrinth to navigate. The process of removing one’s DNA from CODIS is less complex than that of curing the federal titling. The steps and standards can be retrieved from each service’s applicable regulatory provisions. Though relief is possible, the standard that no credible evidence exists for mere probable cause is a high hurdle. Opportunities for redress are limited, and great care should be exercised when using those avenues.