By: Peggy McCarthy
U.S. Sen. Richard Blumenthal and two colleagues have asked the Obama administration to change the military’s pre-trial process in sexual assault cases, saying it allows victims to be questioned in an “intimidating and degrading” manner, resulting in “a major chilling effect on sexual assault reporting.”
Blumenthal, a Democrat, and U.S. Sen. Barbara Boxer (D-CA), and Rep. Jackie Speier (D-CA), wrote to President Barack Obama, in the wake of pre-trial hearings in a case where three former U.S.Naval Academy football players are accused of sexually assaulting a female academy midshipman. In the hearings, the woman was cross- examined for some 30 hours about such topics as her sexual practices and her underwear.
U.S. Sen. Richard Blumenthal
The three lawmakers wrote in their letter that they were “shocked and alarmed” to learn that such questions are allowed in the process, formally called Article 32 in the Uniform Code of Military Justice. Citing legal experts, they said the questioning would not be permitted in any civilian court and constitutes “unabashed abuse.” They asked the Obama administration to immediately change the system to conform to Federal Court procedures.
Article 32 is used to determine if there is probable cause for a case to go a court-martial trial. It differs from a civilian procedure such as a Federal Grand Jury in a number of ways, including that it is public, permits the defendant to be present, and allows extensive questioning of the accuser by the defense attorney. A Grand Jury is conducted in closed session and with participation restricted to presentation of evidence by the prosecution.
Blumenthal, Boxer and Speier said without this change, Congressional proposals to revamp how the military handles sexual assault cases would be less effective. “Our work will not be complete if the Article 32 process allows victims who come bravely forward and report sexual abuse to be harassed and intimidated in a pre-trial setting,” they wrote.
Two bills designed to increase reporting of sexual assault cases would remove prosecution of military sexual assault cases from a victim’s chain of command. Supporters contend that victims often don’t report sexual assault because they fear retaliation. According to a Department of Defense survey, out of 26,000 service members who experienced some form of sexual assault last year, 3,374 victims reported the incidents and 302 cases went to trial. Some 62 percent of those who reported the incidents said they faced professional and social retaliation, while 42 percent of those who didn’t report said they feared reprisals. Pentagon figures estimate there were 7,000 more sexual assaults in 2012 than in the previous year.
Blumenthal and Boxer are co-sponsors of the Senate bill introduced by Senators Kirsten Gillibrand (D-NY) and Susan Collins (R-Maine.) It would establish a process for trained, independent military prosecutors to decide whether to prosecute sexual assault crimes. Speier introduced the House bill.
Nancy Parrish, president of Protect Our Defenders, a veterans’ advocacy group, expressed support for changing Article 32. She called the current process “a brutal and broken system that allows for victims of sexual assault to face horrifying abuse and mistreatment after they report their assault.”
“It has become another means of intimidating the victim, or at a minimum, lessening the likelihood that justice will prevail in their cases,” she added in a statement.
Blumenthal, Boxer and Speier asked Obama not to wait for proposed changes to the military justice system now being considered by the Joint Service Committee on Military Justice, which is comprised of representatives of each service branch. They wrote, “this abuse should not be allowed to stand another day.”
They added, “Military experts have noted that in an Article 32 proceeding, impugning the character of the victim in sexual assault cases has become a standard defense strategy. This is wrong and it demands immediate remedies—no victim should have to endure such an injustice.”
Article 32 provides that a hearing officer appointed by a commander conduct a pre-trial investigation and make a recommendation about whether to go to trial. The commander, who doesn’t attend the hearing, decides whether the case should go to court-martial, selects the court-martial jury, and has the power to overturn a jury’s findings.
Susan Burke, attorney for the victim in the Naval Academy case, has filed a Federal lawsuit asking that Naval Academy Superintendent, Vice Admiral Michael H. Miller, recuse himself from the case, alleging he has acted with bias against sexual assault victims.
