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Part I Sexual Assault In The Military And The Presumption Of Innocence

By Peter Kageleiry, Jr.

Very rarely the Court of Appeals for the Armed Forces (CAAF) issues an opinion that forces military prosecutors to abandon a well-established but fundamentally unfair practice.  As I wrote on this page more than a year ago, the 2016 case of United States v. Hills is one of those opinions.

Military Rule of Evidence 404(b) prohibits admission of other crimes or other acts “to prove a person’s character in order to show” that an accused has a propensity to commit crime.  However, Military Rules of Evidence 413 and 414 create two very big exceptions for sex offenses and child molestation.  Aggressive prosecutors chose to interpret these exceptions to include propensity arguments based on charged offenses.  Young prosecutors and investigators were taught to find multiple alleged victims and/or add multiple charges to the charge sheet in order to then be permitted to argue propensity.  For many years, prosecutors relied on this propensity argument to overcome an absence of corroborating evidence.

The Hillsopinion lays bare the fundamental injustice of charging allegations in order to prove other charged allegations.  What was once common practice in the military justice system is now seen to violate due process.  The Hills Court explained, “It is antithetical to the presumption of innocence to suggest that conduct of which an accused is presumed innocent may be used to show a propensity to have committed other conduct of which he is presumed innocent.”   Military Rules of Evidence 413 and 414 are still applicable in sex offense and child molestation cases, but prosecutors are no longer able to charge an offense in order to then argue propensity.

However obvious the ruling announced by CAAF in Hills, certain sectors of the military justice establishment lament, “he got away with it.”

This results-oriented approach to military justice undermines the legitimacy of the system.  Worse yet, it deprives the brave men and women of our military the ultimate constitutional right – the right to a fair trial.  The politicization of military justice also harms victims by putting them through a difficult process that yields results based not on truth, but based on emotion and opinion.

Due process, not predetermined results, is the hallmark of an advanced, democratic system of justice.  The bigger lesson to take away from Hillsis not, “he got lucky.”  The bigger lesson is that military justice, like all human institutions, is flawed and requires significant course corrections from time to time to ensure fairness.

BLAME CONGRESS

About fifteen years ago, Congress began applying massive pressure on the military to obtain more sexual assault convictions. I heard senior JAGs breathlessly warn groups of assembled junior JAGs, “Congress could take away the military justice system” if we do not solve this sexual assault “problem.”  In response, the military branches threw buckets of money at the “problem” and provided specialized training for prosecutors. Among other things, prosecutors were taught to dirty up the accused and argue that the accused is guilty because he is accused by multiple women.  Prosecutors and military law enforcement were trained to believe that if there is one allegation of sexual assault by one victim, it is their responsibility to find more. They were taught to find and interview every ex-lover, every scorned girlfriend/boyfriend of the accused and add them to the charge sheet – then argue to the panel members at the end of trial, “if he did it once, he must have done it a dozen times.”  As un-American as this is – it worked.  No doubt, there are military members in prison today as a result.

About fifteen years ago, Congress began applying massive pressure on the military to obtain more sexual assault convictions. I heard senior JAGs breathlessly warn groups of assembled junior JAGs, “Congress could take away the military justice system” if we do not solve this sexual assault “problem.”  In response, the military branches threw buckets of money at the “problem” and started providing specialized training for prosecutors. Among other suggested tactics prosecutors were encouraged to find multiple alleged victims, charge them all, and then argue that the accused is guilty because he is accused by multiple women. Prosecutors and military law enforcement were trained to believe that if there is one allegation of sexual assault by one victim, it is their responsibility to “find” more. They were taught to find and interview every ex-lover, every scorned girlfriend/boyfriend of the accused and add them to the charge sheet.  Then they argue to the panel members at the end of trial, “if he did it once, he must have done it a dozen times.”  This practice was antithetical to due process, and it worked.  Over and over again.  No doubt, there are military members in prison today as a result of these tactics.

Please note that the Hillsopinion does not apply retroactively to any case that is no longer on direct appeal.  To ensure the best possible result on appeal, contact a knowledgeable and experienced attorney that understands court-martial appeals.