‘Flawed’ New Rape Law Roils Military Justice System
Michael Doyle and Marisa Taylor
Sept. 21, 2011
WASHINGTON _ Six years ago, Congress tried cracking down on rape in the military. Prompted by disturbing reports of sexual assaults in military academies and war zones, lawmakers rewrote the rules. They wanted to protect victims and help prosecutors.
Now it’s clear that the effort backfired.
The politically attractive but poorly understood legal changes have incited courtroom confusion, judicial frustration and constitutional conflict. Extensive interviews and a McClatchy review of thousands of pages of court documents and internal studies find a congressionally caused crisis of military justice that few civilians know anything about.
The rewritten sexual assault law puts judges “in an impossible position,” the top military appellate court warned. Military lawyers find it “cumbersome and confusing,” a Pentagon task force noted. It leads to “unwarranted acquittals,” Defense Department officials added. And some judges call it unconstitutional.
“The law is an abomination as it is now written,” said Charles Gittins, a former military judge advocate who’s now a defense attorney.
Individual military judges likewise assail the new law. One, Marine Corps Lt. Col. Raymond Beal II, called it “horribly flawed.” Another, J.A. Maksym of the U.S. Navy-Marine Corps Court of Criminal Appeals, blasted it as “poorly written, confusing and arguably absurd.” Yet another, Air Force Col. Don Christensen, called it “almost incomprehensible.”
“If you had 100 monkeys with a typewriter, they’d probably come up with something like this,” Christensen declared during a 2009 aggravated sexual assault case.
A Senate bill introduced in June and proposed by the Defense Department tries to fix the problems that the earlier congressional action created. The bill is pending.
The present law now under fire has particularly complicated trials that involve intoxicated victims and those who say they’ve been assaulted by acquaintances, two common allegations in the military. The confusion about the law can lead to injustice.
Consider the case of a former Air Force enlisted man stationed at California’s Travis Air Force Base.
Stephen Prather, 23, had been accused of aggravated sexual assault by an intoxicated guest of a party that Prather and his wife threw in October 2007.
Prather said he and the guest had engaged in consensual sex. The woman, though, testified that she fell asleep and woke briefly to find Prather on top of her. When she awoke again, she said, she found semen on her underwear.
Prather had raised the woman’s alleged consent as a defense. Prosecutors countered that the woman, whom court documents didn’t identify, was too intoxicated to give consent.
The problem was that the rewritten law had shifted the burden of proof involving consent, appeals court judges concluded. Prather, as the defendant, had the burden to prove that the alleged victim was capable of consenting. Under the Constitution, though, it’s the prosecution that’s supposed to shoulder the burden of proof.
This “results in an unconstitutional burden shift to the accused,” the U.S. Court of Appeals for the Armed Forces said of the new law in its February 2011 decision dismissing Prather’s conviction.
Prather already had served almost 11 months of a two-and-a-half year prison sentence. He’s awaiting his discharge papers.
“I just want Congress to know this law has messed up a lot of people’s lives,” he said in a telephone interview from his home in Houston.
“My wife left me. I can’t get a good job. I had to register as a sex offender. My life is ruined. All for something that should have never been a crime to begin with,” Prather added.
Recently, the military decided not to reprosecute Prather. For other military defendants, the legal ambiguity will continue as challenges inundate appeals courts. The Court of Appeals for the Armed Forces will review several challenges to the law in coming months.
Meanwhile, sexual assaults in the military continue.
More than 4 percent of active-duty women and almost 1 percent of active-duty men reported unwanted sexual contact in 2009, according to the latest annual study from the Pentagon’s Sexual Assault Prevention and Response Office.
All told, the military services completed investigations of more than 3,200 suspects in sex-related crimes in fiscal year 2010. Of these, 16 percent faced court-martial.
Heightened political scrutiny of the military’s handling of sexual misbehavior dates at least to the 1991 Tailhook affair, in which Navy aviators aggressively groped women at a convention in Las Vegas.
Congressional involvement accelerated in early 2004, after reports of sexual assaults on female troops in Iraq.
A year later, the Pentagon established an office dedicated to responding to and preventing sexual assault. Lawmakers also directed the Pentagon to review the military’s laws, known as the Uniform Code of Military Justice.
In an 826-page report, the Pentagon ultimately advised that no changes were necessary. Congress thought otherwise and rewrote the sexual assault provisions as part of a fiscal 2006 defense authorization bill. The intention was clear: Lawmakers wanted to assist prosecutors and shield victims.
Rep. Loretta Sanchez, D-Calif., a key proponent of the changes, called them a “major step” in convicting rapists. Skeptics feared otherwise.
“I’m not a member of Congress, and that’s their job to do what they think is necessary,” Christensen, the Air Force judge, said during a trial. “I just think it’s a prime example of what happens when legislation is influenced by what they see on ‘Oprah’ and what advocacy seekers propose, as opposed to what’s really necessary.”
Sanchez’s office didn’t respond to questions this week.
The Pentagon, in a statement to McClatchy on Wednesday, said it was proposing changes “based on trial court lessons learned and appellate court rulings.” The changes were included in a Senate defense authorization bill that was introduced in June.
The current statute includes the crime of “aggravated sexual contact.” This includes sex acts with a victim who’s “substantially incapacitated,” which lawyers say is ill defined. The Pentagon’s proposed changes remove the word “aggravated,” for example, and more extensively define “substantially incapacitated.”
The proposed changes also include eliminating controversial provisions that shift burdens to the defense.
Under the old military code, prosecutors had to prove that the victim hadn’t consented. The present measure removed that consent provision. This was supposed to help focus attention on the defendant rather than the alleged victim.
The accused can still claim that the victim consented, by relying on what’s called a preponderance of evidence. This has a lower threshold than the prosecution needs to win a criminal conviction. However, prosecutors can still defeat this so-called affirmative defense if they can show beyond a reasonable doubt that the victim didn’t consent.
This burden-shifting poses several problems. It defies logic, for one. If the defense has enough evidence to show consent, then by definition it’s raised a reasonable doubt. One military appeals court called this conundrum a “legal impossibility.”
The other potential problem is constitutional. The Constitution puts the burden of proof on the government, but the new law, in certain circumstances, seemed to shift this burden to the defense.
Consequently, the new rules that took effect Oct. 1, 2007, have been causing trouble just as some had warned they would.
“The guys who didn’t want to change the law said, ‘This is going to happen,’ ” said retired Army Brig. Gen. Thomas Cuthbert, who thought that some changes were appropriate. “And, for the most part, it did happen.”
Cuthbert assisted the subsequent Defense Task Force on Sexual Assault in the Military Services, which urged Congress in a December 2009 report to go back and fix the problems with the new law.
For now, the military has directed military judges to essentially ignore the troublesome portions of the law when they instruct juries. This still leaves judges in what an appellate court called an “impossible position” as they choose between the law Congress wrote and the instructions the military provides.
This is what happened in San Diego with Marine Corps Staff Sgt. Jose M. Medina.
A Marine lance corporal alleged that Medina, a friend, had sex with her in October 2007 while she was incapacitated from drinking. Medina said she’d consented. After he was convicted, he challenged the law.
Unlike in Prather’s case, Medina’s judge hadn’t instructed the jury based on the law Congress wrote. Instead, the judge read what amounted to old instructions. In doing so, he sidestepped the questionable law but upheld the Constitution. The conviction stood.
“The only course left open, it appears, is for military judges to continue giving ‘erroneous’ instructions,” noted Judge James Baker of the Court of Appeals for the Armed Forces.