Military Judge: 'Accused and counsel, please rise.'

Lady Justice

Lady Justice

POPE ARMY AIRFIELD, N.C. -- For those who have had to hear those words from a Military Judge, as they stood and realized that everyone was looking at them, it is one the most frightening experiences they have ever faced. And if they are accused of an Article 120 (i.e., sexual assault) offense under the Uniform Code of Military Justice, they could be facing up to life in prison, having to register as a sex offender, and a dishonorable discharge (DD). (A DD became mandatory for those convicted of certain Article 120 offenses occurring on or after 24 June 2014). The consequences are enormous for all involved and often the lines could not be blurrier. He says "drunken sex"; she says, "sexual assault." 

Having just gotten through Sexual Assault Awareness Month with a focus on prevention, I'd like to share with you my perspective being one of the people who have to defend those accused of these crimes.1 Although I recognize that sexual assault happens under many different circumstances involving allegations against both males and females, this article is focused on the set of circumstances involved in the majority of sexual assaults we see litigated in the military today; i.e., a male accused, a female victim, and alcohol.

This message is intended to reach all Airmen, especially our youngest and most commonly involved in this set of facts, to address a myth and provide a better understanding of the narrative that this type of case will often follow. My hope is that such education will cause you to re-write the ending if you see this storyline playing out in your life or the life of someone else. It is also intended to explain how others not directly involved in the incident can support not only the victim, but also the accused, who under the Constitution is innocent until proven guilty, and who will undergo a great deal of stress during what is a very lengthy process. In fact, many of our Airmen accused of this type of sexual assault did not know their actions would be considered criminal at the time of the incident. The latest numbers show that over half of these cases result in a verdict of not guilty from court-martial panels (what civilians think of as a jury). Lastly, I will discuss some of the services we in the defense community provide to an accused.

AN ALL TOO COMMON THEME

What starts as a night out involving drinking with friends, turns into a fog of uncertainty of what actually happened. Two people wake up next to each other, and it is obvious that more than just sleeping took place. But no matter how hard she tries, she has no memory of ever agreeing to have sex with him. This leads to her making a sexual assault allegation and the start of a year-long nightmare for all those involved. It is an unfortunate, but common storyline at bases across the world.  It is catastrophic for both sides. And under the law, there is no automatic answer. 2

ADDRESSING A MYTH

It is time to resolve a myth. You may have seen or heard that if one consumes a single alcoholic beverage, he or she cannot consent to a sexual act. However, under current military law, if you have consumed alcohol, you CAN consent to sexual intercourse. In recent briefings, AF SAPR HQ has joined in helping dispel this "one drink" myth (see e.g, Sexual Assault Prevention and Response Fact Sheet, dated 23 Jan 14). Indeed, you can be intoxicated and still be able to consent to sex. Drunken sex is not automatically sexual assault. As you'll see below however, that is not to say that it could not be sexual assault either.

In addition, it is vital to understand that whether an accused is intoxicated is not relevant under the law. Said a different way, an accused cannot argue, "I was too drunk to know that she was too drunk." And when a sexual act takes place where one or both of the parties are intoxicated, the facts at the time of the act are of the utmost importance. How the law is interpreted in the courtroom is ultimately up to the members of the court-martial panel. In other words, the amount of alcohol one can consume before being unable to consent will vary on the person and circumstances, as well as the interpretations of the particular panel hearing the case. Meaning, the only thing certain if you put yourself in this position is that you are approaching a very gray area of legality.

"BLACK OUT" vs. "PASS OUT"

Without going into great detail on the science, a scenario like this where the memory of the victim is impacted due to alcohol consumption is likely to involve a discussion about whether the victim was "blacked out" (meaning, the person is functioning and possibly able to walk and talk but her brain is not forming and storing the long-term memories of her actions) or "passed out" (which essentially means the person is unconscious). Regardless, this debate will turn into an analysis on the actions of the parties as observed by others in the hours and minutes leading up to the incident giving rise to the allegation, as it is rare that there is any witness to the sexual act itself other than the victim and the accused. This is done because if the victim was functioning in a way that would be indicative to a reasonable sober person3 that she could "appraise the nature of the sexual conduct", then that can raise a legal defense to a sexual assault allegation even if the victim has no memory of consenting.

BUT IS IT WORTH THE RISK?

Consequently, because of how unclear things are in this scenario due to the subjective legal standard and significant memory issues caused by alcohol consumption (to include the memories of all of the friends who regularly become witnesses at these courts-martial to describe the parties' behaviors leading up to the incident), you must ask yourself . . .

"Is it really worth the risk of going down this path in hopes that a panel will later side in my favor?"

Regardless of what the law says, morality and our mantra as Airmen suggests that we must be each other's Wingman. Thus, the absolute best course of action is to avoid this scenario entirely. And if you are a bystander and see this story playing out, try changing the narrative to avoid the devastating end. Because as our CSAF, Gen Mark Welsh, just communicated in his 2 Apr 15 e-mail on this topic, "We also share the responsibility to act if we see inappropriate behavior unfolding." So if you see yourself caught up in the middle of this plot on your way to potentially becoming my client, instead of rushing to "hook up," instead ask her for a phone number and call her tomorrow when you are both sober. But if it happens to be that you find yourself needing legal representation, rest assured, my colleagues and I will be there for you.

INNOCENT UNTIL PROVEN GUILTY

A great concern exists that given the regular discussion on a victim's rights, services, and treatment, that the rights, services, and treatment of an accused are ignored or overlooked. As a co-worker or friend of an accused, I urge you to not turn your back on him. Recognize that you do not know all of the facts so do not pre-judge, make assumptions, and certainly do not gossip about it. Imagine if you were that person who had sex with someone you believed appeared to be a fully willing and competent partner (albeit had been drinking), only later to learn that you are accused of sexual assault. Would you not want the benefit of being treated "innocent until proven guilty?"  Would you not want your command's support in helping you through a very long and stressful period of uncertainty leading up to your trial? Unfortunately, it happens far too often that people turn their backs on an accused, which we know from past experience has led to grave results.

Make no mistake about it, the time period between when an investigation starts and when trial concludes can exceed a year and is extremely nerve-wracking for an accused. During this time of great uncertainty, an accused has little control over the process, and sadly, some have attempted to or taken their own life because of the stress of the uncertainty and the shame of being under investigation. And when you view a situation like this in the perspective of our suicide intervention training, we have a duty to ensure an accused is well taken care of. The point is, an accused could use your help and support, much like a victim needs help and support, and not your turned back, to get through this process.

SERVICES OF THE TRIAL DEFENSE DIVISION

If you need our services, first understand that our global team of defense counsel is picked as part of a "best qualified" selection process across the whole USAF Judge Advocate General's (JAG) Corps, to ensure you receive competent representation. Please do not hesitate to ask for our immediate help. We will aid you in understanding the process, arm you with the tools to help cope with the increased stress, and be one of the only people who MUST act solely with your interests in mind. No matter where in the world we are located, our chain of command is headed by the Chief, Trial Defense Division, which is part of the Air Force Legal Operations Agency (AFLOA), headquartered at Joint Base Andrews. This means that regardless of the unit you are in, the defense counsel and paralegal you speak with will have no reservations in zealously representing you, without concern about how that could be received by your leadership. The reality is, our license to practice law mandates this, so long as it is within the bounds of ethics and professionalism.

Another major benefit to seeking our help early is that besides the privilege with a Chaplain (i.e., the Communications to Clergy privilege), there is no privilege as strong as those communications made to an attorney. Our advice commonly extends beyond just legal advice, and regularly involves general "life" advice to our clients. We discuss with them their state of mind, and encourage them to utilize the many stress-coping tools the Air Force offers (e.g., Chaplain, Family Advocacy, Mental Health, etc.). From a legal perspective, there is no safer environment to speak your mind than with your attorney and paralegal. It can be especially useful since unfortunately the number of people willing to speak with you once you become an accused often dwindles.

Since you and I have probably not met before, it holds true what I always try and tell my current clients as their case is closing . . . "I hope you never need my help in the future!" But inevitably, storylines like the above will continue to replay. If you find yourself in the midst of this story, I challenge you to rewrite the ending. Please trust me when I tell you, you do not want to know what it feels like when all eyes are on you, as you stand beside me in court, awaiting your fate.

Court-Martial President: 'Of the Specification and Charge, this court-martial finds the accused...'
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1 - The views and opinions expressed herein are those of Capt Patrick Hughes, and they do not necessarily reflect the views of the Trial Defense Division, the Air Force Legal Operations Agency, or the United States Air Force.

2 - Under the current state of the law, a person cannot consent if he or she is "unable to appraise the nature of the sexual conduct at issue, unable to physically communicate unwillingness to engage in the sexual conduct at issue, or otherwise unable to make or communicate competent decisions." Military Judge's Benchbook at 525 (2014). This is a subjective analysis that is determined solely by those sitting on an accused's court-martial panel.

3 - Again, you must remember that it does not matter whether the accused is intoxicated. The standard on whether an accused's belief that a victim consented is based on a reasonably careful, "ordinary, prudent, sober adult under the circumstances" at the time of the offense. See Military Judge's Benchbook at 522 (2014).

Capt. Patrick J. Hughes, Area Defense Counsel , 5451 Reilly Road, Bldg 315, 2nd Floor, Pope Army Airfield, N.C. 28308, DSN:  424-2362, email:  patrick.hughes.9@us.af.mil