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“Rape cases are difficult to prove” because they should be.

What is missing from the dialogue about the military and its sexual assault “epidemic” that no one wants to hear is that the military has done everything it can to stop sexual assault in its tracks. From creating positions of attorneys that represent the alleged victims to strengthening advocacy groups and providing other resources to encourage reporting, the military has by all accounts stepped up efforts at both detection and prevention. But the statistics do not bear out that the military’s “campaign against sexual assault” is having any impact. In fact, the successful prosecution statistics indicate a dip in holding people that are accused “responsible.”

For those tasked with stepping back to ask why these efforts are not yielding the results they intend, if they are examining whether or not the problem that is perceived by popular media and the politicization of the ill, they are failing to effectively communicate the reality that there is an entire category of sexual assault allegations, investigations, and prosecutions in the military not accounted for in the debate about “false allegations.” There is a widening class of allegations by those who believe they were sexually assaulted but make their conclusions based on incomplete memories due to impairment, most often from a night of heavy drinking.

By coming to the conclusion in the hours, days, and even weeks or months that follow an encounter, a litany of factors combines to convince the would-be complainant that she is a victim. In the context of the military’s extensive reaction to what is perceived as an epidemic, the dialogue has been limited to a debate between two types of allegations: those that are “legitimate” and those that are “false.” I submit to you that there is a third distinct class of cases: the “misperceived.”

In the Army between 2010 and 2012, more than eighty percent of adult on adult allegations of sexual assault involved alcohol or other intoxicants. The National District Attorneys Association devotes much time and resources to assisting the military and others in its prosecution of “alcohol facilitated sexual assault.” The NDAA does not address those allegations where the complainant has concluded based on an incomplete memory that the encounter was a sexual assault, even though legally it was not. Hand in hand with the failure to address this class of encounters is the misapprehension that if the complainant was intoxicated she could not legally consent to sexual activity.

Thus far, none of the amendments to the UCMJ’s law of sexual assault includes an outright prohibition to drunk sex. Similarly, Article 120 of the UCMJ does not outlaw sexual intercourse with a person that is experiencing a blackout. A blackout is an episode of amnesia, during which people are capable of engaging in a variety of activities that they cannot later remember. A person experiencing a blackout might lose memory for all or part of a drinking event. That memory loss might involve something as mundane as dancing or as significant as having sex. A blackout differs from passing out in that they are very different states of consciousness. Passing out involves loss of consciousness during which the person cannot express their will. Somebody passes out when the level of alcohol in the brain reaches a level of toxicity (or poison) that the brain literally shuts down. The person enters a state of unconsciousness whereby they would not easily be roused. Conversely, while in a blackout a person is fully conscious and able to engage in complex activities (walking, talking, and even sexual intercourse) but just not be able to remember the events. [1]

What complicates allegations of sexual assault when alcohol consumption has been high is attempts to decipher when the complainant was in fact unconscious or passed out versus when they were operating under a blackout and do not remember the events that led up to consent. For the complainant, there typically is a moment when they become aware of the sexual activity and for them, it feels as though they awaken to the sexual activity already going on before they “came to.”

Are there situations when a military member is, in fact, engaging in sexual intercourse with an unconscious and lifeless body? Certainly. But those instances are by far the minority when compared to those scenarios when the complainant’s memory starts encoding again, despite their failure to recollect the steps that led up to their awareness.

Military prosecutors are not discriminating between those cases when the complainant merely feels she was victimized vice those instances when the circumstantial evidence bears out that she was indeed a victim. The military will take forward any case that includes a putative victim that desires prosecution, no matter what whether the circumstantial evidence indicates that the memory gaps include the moment of consent. The fragility of memory continues to be studied and the creation of reconstructed memory cannot be denied. When the person awakens the next morning and attempts to piece together reality, cues contribute to form a patchwork. But the memory is only as reliable as are the cues that form it; if the person relies on inaccurate cues, the reconstructed memory too will be inaccurate. But to the person forming and reshaping these memories, the memory feels real and feels accurate. Sincerity, however, does not translate to accuracy.

A recent article posits that, “Rape cases are difficult to prove.” This author submits that rape occurs far less frequently than is believed by the would-be complainant. Military juries (panels) reach a finding of not guilty in cases where the defense is able to appropriately highlight the circumstances indicating that consent occurred and in those cases where “competing narratives” give way to the burden of proof. The anonymous author states that, “too often, juries…come to the conclusion…two consenting adults had sex.” For this author, it is not often enough that panels reach findings of not guilty. Uniformed defense attorneys often fall into the trap of oversimplified two-category classification of sexual assault cases that involve alcohol and try to raise doubt by drumming up a weak, unconvincing motive to fabricate the allegation. When those uniformed defense attorneys fail to convince panels of the particular motive to fabricate, panels that approach the allegation with the singular question “why would she lie?” conclude that she would not, therefore we must convict.

The anonymous author asserts that, “Upon entering a courtroom, the deck is stacked against the victim.” The anonymous author fails to recognize that the stack is in fact decked against the person that has been accused. And with every amendment to Article 120, Article 32, M.R.E. 412, and M.R.E. 513, a military accused’s rights to a fair investigation and trial are increasingly eroded. The military’s campaign against sexual assault also mandates training including information about prevention and response; but training is only beneficial if it is accurate and the trainers are not attorneys.

During general voir dire of a general court-martial that occurred last week at Fort Leavenworth, Kansas, six out of nine potential panel members answered in the affirmative that each had received training that a person who is intoxicated cannot legally consent to sexual activity; and the training that each of those six potential jury members received was wrong. Inaccurate training that focuses on the absence of false allegations helps stack the deck against a military accused. Political pressure to strip a military commander of his authority to take action in sexual assault allegations helps stack the deck against a military accused. Above all, feeling that the only alternative to a week assertion of a motive to fabricate is conviction stacks the deck against a military accused.

This author does not mean to suggest that a complainant of sexual assault finds herself in an easy position; more often than not, a would-be complainant determines the system asks too much of her and she chooses not to participate. Legislative efforts over the course of the past eight years have not attempted to ensure due process, but rather have all been calculated to tip the scales in favor of prosecution. A proper call to action reminds the public that the military justice system’s role is not to alleviate the plight of a complainant; the military justice system’s role is to ensure that the person accused receives a fair trial, no matter how unpopular due process has become. Unlike the anonymous author’s supposition that the “best we can do for [the soldier-perpetrator and victim] is to stop it from happening in the first place” this author offers that the best we can offer is a system that guards against bending to the will of the complainant that misperceives and guards against choosing a court-martial over a tough conversation with a misperceiving, would-be complainant.

I write from the perspective as one of the fifteen original Army Special Victim Prosecutors charged with being on the front lines of the military’s campaign against sexual assault. I write from the perspective as one of a low but rising number of civilian court-martial defense attorneys; I write from the perspective of someone that specializes in combating the military’s efforts to prosecute every allegation of sexual assault. Rape cases are hard to prosecute, but the military is bending to the will of Congressional efforts that are trying to make it easier and easier at the expense of the military accused, at the expense of fairness, at the expense of due process, and ultimately at the expense of the would-be complainant that is not a victim of anything more than an incomplete memory.

[1] Educational information about blackout versus pass out provided by Professor / Dr. Kim Fromme, University of Texas, Austin, Texas, who teaches and researches about the impacts of alcohol on behavior, thinking, and memory.