Where is the Justice? The Sexual Assault Crisis Plaguing the Military and a Lack of Meaningful Justice

Abstract

Sexual assault is a major problem in every branch of the American Armed Forces. The current military justice system denies victims of sexual assault in the military meaningful and competent justice. Our armed service members put their lives on the line to fight for American values, but are not afforded those same American values when seeking justice in the military’s courts.

One of the military justice system’s failures is the lack of procedural protections for Article 32 hearings and other pretrial proceedings. The military's pretrial hearing, an Article 32 hearing, determines whether there is enough probable cause to bring the accused to trial. Unlike a federal grand jury, which does not permit cross examination of the government's witnesses or public attendance, Article 32 hearings are public, and defendants are statutorily entitled to thoroughly cross-examine government witnesses before the investigating officer determines whether the defendant will be tried. Said another way, in the event a defendant committed the crime and never had an opportunity to cross-examine the government’s key witnesses (in sexual assault cases usually the victim) BEFORE trial, the defendant will never be punished for their atrocious conduct. The defendant’s statutory right to cross examination BEFORE trial at Article 32 hearings is fundamentally different than the civilian justice system, which guarantees the right to cross-examine at trial, after the probable cause determination against the defendant has been determined.

Despite these differences, there are laws already on the books that, if adequately enforced and/or revised, would result in marked benefits to all military justice system participants, especially victims of sexual assault. The status quo, however, contains contradictory laws that apply with equal force, resulting in a paradoxical outcome. For instance, MRE 412, known as the “rape shield rule” states that it applies to Article 32 hearings. MRE 412 as written requires the offering party to submit MRE 412 evidence at least 5 days prior to the entry of pleas. The military judge is also supposed to conduct a closed hearing to determine, through legal analysis, whether evidence of prior sexual conduct will be admitted for pretrial purposes. Despite MRE 412’s express language, none of its procedures are being enforced in practice. What is more, RCM 405, says that investigating officers (who did not have to possess legal training until 2014), who oversee the Article 32 hearing as a quasi-judge, are not required to make evidentiary rulings! To add insult to injury, the investigating officer is also within the chain of command, and so is the commanding authority (the officer charged with making the final decision of whether to charge and bring the accused to trial).

The National Defense Authorization Act (“NDAA”) of 2014 did not create laws prohibiting the use of non-legally trained investigating officers in all situations. Even though the NDAA 2014 gave alleged military victims (civilians could never be forced to appear) the right to refuse to appear at Article 32 hearings, there is still a loophole that allows defense counsel to depose and thoroughly cross-examine key government witnesses before a defendant can be tried. The fundamental problem being that the defendant has a statutory right to cross-examine the government's witnesses before probable cause can be determined and the accused can be brought to trial.

So, although victims can refuse to appear at Article 32 hearings, the defendant must still get his opportunity to cross-examine the government's witnesses (in sexual assault cases usually the victims only) if the defendant is to ever be tried. Given this predicament, defendants will be able to depose the government's key witnesses (the victims) before trial. The problem is that that the deposition officer charged with overseeing the deposition is not required to rule on objections or to possess any legal training, and thus we are back to square one. While some may argue that deposition officers in the civilian justice system may not always be required to possess legal training and that counsel can stop the deposition at will, given the potential for bias and abuse in the chain of command context, and the stakes (whether or not the accused will be charged), this loophole creates the potential for abuse.

Some victims fed up with the failure of the military justice system are turning to civilian federal district courts in a desperate cry for relief. While these district courts are sympathetic to the victims’ allegations, the courts do not have the legal ability to provide redress. Despite the key improvements contained in the NDAA 2014, we are still a world away from the reform necessary to make a meaningful change.

Keywords: Sexual Assault In The Military, Article 32, M.C.M., R.C.M., M.R.E, Naval Academy, Sexual Abuse, Retaliation, courts-martial, commanding officer, commanding authority

JEL Classification: K39