Congress tries again to get military sexual assault laws right

McClatchy NewspapersDecember 13, 2011 

WASHINGTON — Congress is quietly giving itself a do-over on the military sexual assault law it botched the last time around.

The changes included in a massive defense bill attempt to correct Congress' own mistakes, which baffled military judges called "arguably absurd," "almost incomprehensible" and ultimately "unconstitutional."

But unlike their last ill-fated effort, when lawmakers trumpeted their revisions to the military's criminal code, this rewrite is flying below the political radar. Discreetly folded into the middle of a 1,844-page defense bill, the new changes have never been debated publicly.

"It wouldn't have been such a mess had Congress decided to hold some real hearings before enacting this legislation," said Eugene Fidell, a former military attorney who now teaches military law at Yale Law School. "I don't have any confidence in what they're going to do. It'll be guesswork or luck if Congress gets this right."

The Uniform Code of Military Justice changes, as well as other sexual assault provisions, are included in legislation that authorizes Defense Department spending for fiscal 2012. Negotiators agreed to the $662 billion bill Monday, and lawmakers are scheduled to approve it as early as Wednesday.

The legislation attracted controversy over extensively debated terrorist detention provisions.

Yet the criminal provisions that could affect many U.S. servicemen and women elicited little or no congressional discussion. The House Armed Services Committee, for one, has held more than 100 hearings this year. None dealt with the Uniform Code of Military Justice.

"The dynamic within the House and Senate armed services committees is basically they have private conversations with the Pentagon about military justice matters and then they enact something, leaving everyone else to speculate about what they did and why," Fidell said.

Sexual assault confronts lawmakers with a particularly complex and politically sensitive area of the law.

In fiscal 2010, 3,158 sexual assaults were counted by the Defense Department's Sexual Assault Prevention and Response Office. Military officials acknowledge many assaults are never reported.

Trying to crack down, Congress six years ago changed sexual assault provisions by shifting the burden of proof to defendants who were claiming the sex was consensual, and it made it easier for prosecutors to claim an alleged victim was incapacitated because of intoxication.

"One of the reasons we made the effort to change (the law) was to get prosecutions," Rep. Loretta Sanchez, D-Calif. said at the time.

But in a February 2011 ruling that dismissed the conviction of former Travis Air Force Base enlisted man Stephen Prather, judges declared that shifting the burden of proof as Congress did was unconstitutional. The ruling following harsh denunciations of the law by myriad military judges.

"This law has messed up a lot of people's lives," Prather, who now lives in Houston, told McClatchy earlier this year. "My life is ruined, all for something that should have never been a crime to begin with."

The new defense bill reverses the earlier burden-shifting changes. The Senate Armed Services Committee originated the revisions but did not hold a hearing on the subject. The revisions have never been explained on the Senate floor.

Dwight Sullivan, acting chief of the Air Force Defense Division, said the revisions don't completely clear up confusion over a defendant's ability to argue that a victim consented to sex. He suspected that the drafters thought that a lack of consent was an implicit element of rape and sexual assault, and therefore don't address it directly.

"The statute, though clearly more coherent than its predecessor, still seems a bit muddled," he said.

The new bill also boosts the number of personnel dealing with sexual assault and beefs up training for troops. This shows political commitment to the cause, though effectiveness is harder to prove.

Current troop training was described as "marginally effective" by a 2009 Pentagon task force. Troops found the training boring, complaining of "death by PowerPoint," and the task force reported that "personnel did not pay close attention" to the required training.

"If the training is bad or it's not being heard by the people who need to hear it, then the military is wasting tens of millions of dollars," said Phil Cave, a civilian attorney and retired Navy judge advocate. "Right now, the training is flawed."

Trainers, for instance, have incorrectly claimed a woman can't consent after one alcoholic drink. Judges, in response, have had to instruct potential jurors to ignore their training. During the sexual assault court-martial of Marine Corps Staff Sgt. Jamie Walton, for instance, one juror was dismissed because he couldn't reconcile the conflict between his training and the legal instructions.

The new defense bill orders the hiring of an estimated 650 additional civilians as victims advocates or sexual assault response coordinators. The Pentagon will now spend an estimated $309 million over the next five years on sexual assault response personnel.

These advocates and coordinators can run interference for victims and strengthen training for all. Their sympathies also can complicate court proceedings.

The new defense bill adopts some of the Pentagon task force's recommendations; for instance, in shielding conversations between victims' advocates and accusers, similar to the privilege granted psychologists.

"We want individuals to be able to come forward so that we can help them," Air Force Brig. Gen. Sharon Dunbar told a House panel last year. "And if they know that the individual that is designated ... can also testify against them, many of the victims are loath to come forward."

The privilege, however, has sparked concern that it would block defendants from obtaining evidence that would help clear them — such as conflicting statements by the accuser to an advocate about an alleged rape.

None of the legislative changes are expected to address broader problems with the military's handling of rape cases. A McClatchy analysis found that the military is prosecuting a growing number of sexual assault allegations, including highly contested cases that would be unlikely to go to trial in many civilian courts. Yet only 27 percent of the defendants were convicted of those offenses or other serious crimes in 2009 and 2010, McClatchy reported.

MORE FROM MCCLATCHY:

McClatchy 'Military Injustice' series

Military's newly aggressive rape prosecution has pitfalls

Bureaucracy has blossomed in military's war on rape

Mix of booze and sex can cause trouble for military

McClatchy Newspapers 2011

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