Legal Changes in Military Rape Cases ‘Horribly Flawed’

Michael Doyle; Marisa Taylor
Washington Post
September 27, 2011

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 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 is 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 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 2 1/2-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 re-prosecute 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.