Unfortunately, I am unable to share the names of the persons involved in this case. Suffice it to say that a male Non-commissioned officer in the Army was accused by a female Non-commissioned officer of sexual battery under the UCMJ in a truly he said/she said case, i.e. no witnesses and no physical evidence, and the military dismissed the charges against him.
I was able to convince the Article 32 Investigating Officer that the accuser was lying in much the same way the Duke Lacrosse players attorneys were able to convince the Judge that their accuser was lying. An Article 32 is a military hearing to determine if enough reasonable grounds exist to forward the case to a court martial; this is a very low burden. Many of the "details" she gave to local authorities and the Army's Criminal Investigative Division (CID) were completely contradicted by the evidence that we presented, which consisted of pictures of the crime scene as she alleged and phone records.
In June 2011, the accuser alleged to the local police that she went to my client's house at night in late November or early December 2010 and watched TV where she was sexually assaulted on his couch. During her Article 32 testimony, she described the entertainment center as dark wood and the couch as a tannish or cream colored cloth sofa. Actually, my client's entertainment system is white and he has a chocolate leather sofa. Also, the accuser said that she called him on his cell phone twice on the way over to his house, but his cell phone records indicated that she never called him during the two month period in which she alleged the assault occurred. My client was adamant that the accuser has never been to his house. I finally learned today that the General Court Martial Convening Authority dismissed the case without prejudice, so I can ethically comment on the case.
Two things struck me about this case. First, my client exercised his right to speak to an attorney, which is always the right thing to do. I will admit that exercising your rights to an attorney under the 5th Amendment is difficult to do when you are innocent because you would prefer not to pay for a consultation for something you did not do. If you can find an attorney, like me, who will provide a free initial consultation, then at least you are not out a ton of money if the charges are dropped before you are charged. However, most attorneys want to be retained and earn a fee for their advice. While it is difficult to keep quiet when you know you are innocent, believe it or not, there are sexual assault reponse counselors ("SARC") who will help their "victims" clear up lies by allowing them to review the accused's sworn statement or ask them leading questions after the SARC reviews the accused's statement, so the accuser can amend her statement.
My client did the right thing and allowed this woman to make two sworn statements without anyone hearing his side, so that she could not fix her statements. I find myself often times convincing my male clients to be stoic and allow the lying accuser to keep talking in anticipation that the tales will grow so outlandish that even the investigator will not believe the accuser. Even if I have a video clearly showing consent, my policy is that when confronted with a false allegation, the best thing to do is to say nothing until you speak to an attorney. The military has recently criminalized surreptitiously recording a sex act between you and your partner, even for alibi purposes in a 2012 amendment to Article 120 of the UCMJ, so if a Servicemember produces a video, then he will probably receive non-judicial punishment.
Second, this accuser's allegations could have been easily disproved even without my client's statement. Usually, CID will request that an accuser draw a diagram of the alleged crime scene. This is particularly important when the alleged assault supposedly occurred at the accused's home and the details of which would support that the accuser was actually in his home. In this case, the CID agent did admit that she should have directed the accuser to draw a diagram of the accused's home to prove that she was there, but the agent failed to do that. The agent also failed to ask the accuser to describe details regarding the accused's home, such as what kind of couch he had, what the entertainment center looked like, etc. Once the CID agent got that information, she could have gotten a search warrant and could have taken pictures of the accused's home. When it did not look as the accuser described, then the CID agent could have gone back to the accuser and confronted her with the pictures to see if the accuser would admit that she was lying. If it looked exactly how the accuser described, then at least the CID agent could have taken solace in the belief that the accuser had been there before.
The accuser stated that she called my client's cell phone from her cell phone on the way over to his house to get directions twice and that it was dark when she began driving over to his house. His cell phone records clearly showed that she never called him. In fact, he made 3 calls to her during the two month window when she said the alleged assault occurred, none of which were after 3:30 p.m. or over one minute. Once again, CID should have requested her cell phone records to show that she made the phone calls to him. Had they done that, then perhaps they would realize that her story was contradicted or she might have confessed to making the incident up.
When I finished my examination of the CID agent during her Article 32 testimony where I questioned her failure to get a diagram of the accused's home, the accuser's cell phone records, or conduct any other kind of investigation whatsoever, the Special Victim Prosecutor (SVP) led her with questions about "victimization of the victim." The SVP actually attempted to justify NOT asking questions or requesting corroborating evidence because it would further victimize the victim if the accuser thought for a second that CID did not believe her. I have been doing this kind of criminal litigation for about 10 years now, both as a prosecutor and a defense counsel, and I have seen CID go from investigating the veracity of the accuser's claims somewhat thoroughly to merely taking a sworn statement without any attempt to determine whether the accuser is telling the truth.
In addition to all of this evidence showing a lack of corroboration of her story, this particular accuser had a history of mental health treatment. She also had a history of making up lies to explain her shortcomings in life. I believe that she might have made a false allegation at a previous duty station. The SVP fought me every step of the way in trying to get her mental health records, which I believed were quite relevant, especially if she was diagnosed with a histrionic personality disorder. This alleged victim accused my client of sexual assault in June 2011, after she returned to the unit in May 2011 because she failed out of a military leadership course; she testified that she heard my client say that she was stupid.
The lesson learned from this case is that military accused are on their own when accused of sexual assault, and it is up to them to prove their innocence. They can no longer rely on NCIS, CID, or AFOSI to conduct an unbiased investigation into the veracity of an accuser's allegations because these agents are trained to avoid at all costs "victimizing the victim." The accused needs to lawyer up and begin collecting adverse evidence regarding the accuser immediately. My client was fortunate that he was able to provide me evidence that showed he was innocent. Had he not, then I imagine I would be representing him at a General Court-martial.
Victims of sexual assault could have an easier time proving their accusations if the University Assembly approves changes to campus policy next week. But opponents of the changes say that students accused of assault — who face expulsion from the University — would lose critical rights and safeguards if the U.A.’s resolution is approved.
The debate about how to protect victims’ rights without creating a system that unfairly treats the accused has been raging at Cornell for a year. With the U.A.’s vote next week, the discussion may finally reach a conclusion.
The proposed changes, which were endorsed by a U.A. committee in February after extensive debate, would lower the standard of proof required in sexual assault accusations. They would also move the process for adjudicating the regulations out of the Campus Code of Conduct and into the system that is already used for faculty and staff accused of assault.
That existing system, known as Policy 6.4, calls for an investigator to gather the facts relating to the accusation, decide whether the alleged assault occurred and then recommend corrective actions.
That process is markedly different from the one currently in place for accusations against students. The existing system, under the Code of Conduct, includes a variety of protections for the accused — protections modeled after the criminal justice system — that Policy 6.4 does not incorporate. Among them is the use of the University Hearing Board, which hears arguments by the opposing sides and then makes a decision. The UHB is composed of members of the Cornell community, including students, who have received special training in order to receive their positions on the board. Under the Code, both sides of the dispute can also bring in outside lawyers to help argue their cases.
The proposed changes are promoted by victim advocates, who say the new system would create a fairer process and better protect students who have been sexually assaulted.
Policy 6.4, which was adopted in July 1996, “has provided a fair, effective and prompt process for both parties,” Nelson Roth, deputy University counsel, said in a letter to the U.A.
Eva Drago ’12, who is on the board of the Women’s Resource Center, told The Sun last semester that she would support a process that prevents sexual assault victims from having to detail their experiences to fellow students — who currently sit on the UHB — and that will limit the role of lawyers, who can currently cross-examine victims when the cases are presented. Both of those changes would take place if the process were moved to Policy 6.4.
Still, the proposal faces opposition.
“The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma,” Prof. Cynthia Bowman, law, said in a statement to the U.A. “To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.”
“Indeed, there is general agreement among faculty at the Law School that the procedures being proposed are Orwellian,” she added.
Prof. Kevin Clermont, law, who serves on the U.A.’s Codes and Judicial Committee and has been a vocal opponent of proposals to lower the burden of proof in sexual assault cases, said he agrees with Bowman’s sentiment.
“Not all would characterize the procedure as Orwellian; some have used instead the term Kafkaesque,” he said. “Across the political spectrum, law professors are in agreement that such an administrative procedure is fundamentally unfair.”
Matt Campbell law, who is also on the CJC, argued that the move to Policy 6.4 “should be rejected full stop.” He wrote to the U.A. that accepting the proposal would result in “removing all safeguards provided by the Campus Code (including lowering the burden of proof) and divorcing students from the process of making future modifications regarding this issue.”
Ahead of the U.A.’s meeting — which is scheduled for Tuesday afternoon — the assembly’s chair, Melissa Lukasiewicz ’14, will hold a question and answer session on the proposed changes. The session will take place on Monday at 2:30 p.m. in B16 Day Hall, Lukasiewicz said.
The debate over how to respond to sexual assault accusations has grown out of a temporary amendment to the Code of Conduct — which will remain in effect until a new resolution is passed — that was hurriedly approved last spring to ensure the University stayed in compliance with new U.S. Department of Education directives.
An office within the Department of Education issued a letter last April to schools and universities that, Cornell administrators argued, required the University to make immediate changes to its process for dealing with sexual assault accusations in order to remain in compliance with Title IX — a federal law that prohibits discrimination on the basis of gender in educational programs funded by the federal government.
If Cornell did not make the changes quickly, the administrators said, the University would be “out of compliance” and could be sanctioned by the Education Department.
However, in her letter to the U.A., Bowman wrote that the Education Department’s directive “is not an administrative regulation, has not been subjected to notice and comment, and thus does not have the status of law.”
In deciding how to respond to the department’s letter, Bowman said: “The University should focus on precisely what its goal should be. Is it merely to conform in order to eliminate any possibility of losing federal funds? Although even a private university receiving federal funds is subject to this sanction, it has, in fact, never been applied. Is it to reduce any possibility of legal liability on the part of the University? Or is it to produce a campus free of sexual violence? Taking sexual harassment and sexual offenses out of the Code will not accomplish either of these last two goals.”
But Roth, the deputy University counsel, disagreed with Bowman’s reading of the letter. He said that the Department of Education had made it clear that a system, such as Cornell’s, that does not give equal rights to the victim and the accused is not fair and equitable.
The temporary amendment that resulted from the government’s letter lowered the burden of proof required in sexual assault cases, making it easier for a student to win a case against another student. It also gave the accuser the same rights as the accused student to appeal the decision.
The amendment led to a burden of proof in sexual assault cases that is lower than the burden required for other offenses in the Code of Conduct. The disparity created the philosophical question of whether it made sense to have different burdens of proof for different accusations within the same Code, and it created the practical question of how a case should be decided if a student was accused of both sexual assault and another offense.
“I don’t think that it will work to keep it the way it is now,” Judicial Administrator Mary Beth Grant J.D. ’88, told The Sun in November, referring to the differing standards of proof in the Code.
That concern is part of the motivation behind the resolution on which the U.A. will vote next week. If the assembly approves the proposal, it will be sent to President David Skorton for his signature.