Q. Congress has recently made a number of changes to how the military handles sexual assault cases. What do you believe to be the most significant change?
A. One of the most significant changes involves how allegations of such offenses are investigated at Article 32 hearings, the military's version of grand jury proceedings. These changes were included in the National Defense Authorization Act for fiscal 2014, and took effect Dec. 26.
An Article 32 hearing is the avenue through which the military decides whether to refer a case to general court-martial. The 2014 National Defense Authorization Act specified that the purpose of this type of preliminary hearing is, among other things, to determine "whether there is probable cause to believe an offense has been committed and the accused committed the offense."
More importantly, the law states that alleged sexual assault victims can choose not to testify at the preliminary hearing, whereas they used to be subjected to cross-examination by defense attorneys. In light of the harsh and extended questioning to which an alleged rape victim was subjected during an Article 32 hearing at the Naval Academy in 2013, Congress moved to overhaul the investigation process.
From a defense attorney's perspective, the alleged victim's ability to avoid cross-examination at this stage raises several unique challenges. It's important for service members to realize that if they don't want to face general court-martial charges, the Article 32 hearing is probably their last best opportunity to avoid that outcome. That's still the case, but with no alleged victim to cross-examine, it will be much harder to secure a no-charge recommendation. I'm not saying it is not impossible — just harder.
Under the old Article 32, a defense attorney used to test the veracity of the alleged victim's testimony. A defense attorney could have asked what the alleged victim remembered about the alleged incident and flush out any potential biases or motives to lie about it. Alleged victims were under oath, so when their Article 32 testimony did not line up with statements made to law enforcement or others, their credibility and that of the allegation could be cast in doubt.
These cross-examination strategies remain in defense attorneys' Article 32 playbooks, but they'll have to be reserved for witnesses against their clients if the alleged victim decides to not testify.
Of course, the Sixth Amendment of the U.S. Constitution provides service members with the right to confront those who have accused them of committing crimes. So defense attorneys can cross-examine alleged victims at trial. It's also important to note that the 2014 NDAA made general court-martial the only venue for all rape and sexual assault cases involving adults or children in violation of Articles 120 and 120b, forcible sodomy cases in violation of Article 125, and cases involving attempts of these offenses in violation of Article 80.
Service members accused of rape, sexual assault or forcible sodomy should immediately consult with an experienced military law attorney. With or without an alleged victim's presence at the Article 32 hearing, an attorney can mount an aggressive defense that, depending on the circumstances, involves cross-examining witnesses and finding flaws or inconsistencies in the evidence or testimony.
Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to firstname.lastname@example.org.