There are NO Such Things as “He Said / She Said” Sexual Assault Cases

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A climate that systematically encourages individuals to report allegations of sexual assault is, by itself, not one with a poor aim. However, when that system is coupled with policies that dictate that “investigations” into those allegations of sexual assault are precluded from conducting meaningful inquiries, all may be lost. What advocates of the position “don’t investigate the ‘victim’” fail to realize is that military prosecutors come to believe that their position is to blindly accept the allegation as true and present merely that voice in a court-martial. The steps between allegation and trial have all but disappeared, and the result is an overwhelming number of members unfairly facing potential conviction and accompanying sexual registration.

The irony lies in this idea of the “He Said / She Said” sexual assault case. Proponents of higher conviction rates would concur that one of the main reasons that sexual assault prosecutors fail to achieve conviction is the failure to present corroborating evidence. As an active duty special victim prosecutor, I taught blocks of instruction that there is NO such things as a “He Said / She Said” sexual assault case and more specifically, on strategies to find corroboration. Having implemented policies and procedures that forgo investigation that more closely analyzes the allegation and its attendant circumstances, military prosecutors are by extension failing to find corroboration. The system’s failure is that by neglecting to seek out corroboration, military prosecutors are failing to weed out those meritless cases that should never see the inside of a courtroom.

Rather than sift through the allegation itself, the military’s law enforcement agencies carry out investigation into the suspect’s relationship history. Though research indicates that offenders tend to repeat abuse, often and likely more often than not, such investigative efforts do not yield more victims. Even when CID, OSI, NCIS, and CGIS agents do not find prior victims, the same law enforcement bodies do not make efforts to find corroboration. Instead, they study up on additional techniques to induce admissions or confessions; when that fails, the case is closed and handed to a military prosecutor that has received countless hours of directions that their job is to believe the victim, at all cost, and often in the face of evidence contrary to their allegation.

Perhaps the greatest failure of the military prosecutor is the belief that corroboration in a sexual assault case means that there was an eyewitness to the sexual encounter in question. Any practitioner of criminal law will candidly profess that eyewitnesses to sexual assault are so rare as to be a proverbial unicorn. Over the past five years, military prosecutors have come to the slow realization that corroboration can also include statements made to an outcry witness (if not the actual statement, then at least that an outcry was made) and potentially post-incident behavior changes. What is missing from military prosecutors (and likely a key reason that cases get lost) is the idea of building the case bit by bit, brick by brick. What do I mean? Well, if the complainant says she drank a lot of alcohol and that the government’s theory is that her level of intoxication is why she was not able to lawfully consent to the sexual activity, do more than ask how many drinks she had, what kind they were, and how she felt on a scale of 1 to 10. If the complainant says she drank a lot of alcohol, find out if she drank it before going into public, and if she did, how the alcohol was purchased. If she tells you she bought it the weekend before at the base alcohol store, find out how she paid for it, obtain the receipt, get her debit card record demonstrating that she made the purchase; do something more than ask about how intoxicated she felt. Lest any prosecutors are trolling this blog for tips and pointers or any of my readers are wondering how I would possibly benefit by helping prosecutors build better cases, fear not. When prosecutors go looking for corroboration, sometimes they find that the case lacks merit. Mind blown?

In In my last active duty assignment as a military prosecutor, I interviewed a complainant who had alleged that her husband had used strangulation to sexually violate her. Her description was vivid, her affect was at times immeasurably pained and then stoic; she appeared to be reliving the experience as she recounted it to me. Hearing her narrative, I whole-heartedly believed her. Did the commander prefer charges the next day? Most certainly not. I sought out instead to build the strongest case I could, to be her champion for justice. As I investigated the case, seeking corroboration, what I found instead was that her allegation was unsubstantiated. Before the prosecutors chime in to antagonize, question the merit of my conclusion, and chastise me with comments like “not all inconsistencies mean the allegation isn’t true,” I mean to tell you that I discovered the member had an alibi. And not an alibi based off the word of a buddy, but based off actual independently verified evidence. And no, this was not a case where she had been mistaken about when it happened because when it happened was central to her story in relationship to another known event in her life. This discovery devastated me. I had come to trust in my intuition, and from my perspective, I had failed. I learned weeks later that this victim had been raped by strangulation years before and her ability to recount those details of that experience were real, just not for the military accused she was reporting.

Had I not gone looking for corroboration, I hate to think of the consequences. I am not so conceited as to believe his conviction at my hands would be absolute. Certainly, those that believe in the system would presume that his defense attorneys would have found the exonerating evidence, but I would not necessarily be among them. Most assuredly, I would have provided a titling / indexing opinion that would have seriously impacted his future potential employment. And without doubt, he would have been subjected to the process of military prosecution itself, which is an experience all its own worthy of nightmares. Failing to look for corroboration and failing to more meaningfully analyze an allegation (under the “newest” Article 32(b) hearing rules), translates to a system that blindly accepts all allegations as true and puts lives at risk. Literally. The suicide rates among veterans is staggering despite efforts at prevention and resiliency; among those at greatest risk are those facing lengthy, though often meaningless, investigations who understand that the only end to their professional and social isolation is the court-martial felony-level trial, whose outcome they may not want to face.

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