Sex on the Brain

3/17/2021

CAAFlog interns reviewed all CAAF opinions from the 2019-2020 term. Only four of twenty-five cases did not involve a conviction for a sex-related offense (including child pornography): Turner, Hennis, Easterly, & Muller. This is obviously not normal for a general criminal jurisdiction. The disparity raises a number of questions, and perhaps some of you have tentative answers.

1. Is this new?

2. What is the cause of this?

3. What is lost (or gained) by a court having "sex on the brain"? Is there is a risk that general doctrines, analyzed in light of sex crimes, will develop in an aberrant or skewed manner? Is there a risk that the reform movement will become singularly focused on sex crimes because these are the only cases reviewed by the highest military court?

Brenner Fissell

EIC

11 Comments

Lone Bear

3/17/2021 10:06:10 pm

A lot of sex assault cases go forward on very weak evidence, and tend toward appellate error. It’s larger a result of Convening Authorities sending cases forward based on victim preferences vs. evidence. This eats up bandwidth for cases that could otherwise be tried quickly. It would be better if experts made these decisions instead of untrained and unqualified Commanders.

Brian L. Cox link

3/17/2021 11:42:16 pm

This current trend very likely represents a convergence of two central contemporary factors in US MJ practice.

The first is a general reluctance of commanders, based on the prevailing political climate, to refrain from referring SA cases to CM - even for cases that seem to have questionable merit at the referral stage. This is a trend I recently experienced firsthand repeatedly as a trial counsel and then brigade judge advocate, and the predictable result is an increased incidence of potentially reversible error that must be addressed at the appellate level.

The second likely central contributing factor is that an increase in SA litigation creates more opportunity for appellate courts 1) to use common law to fill in existing statutory gaps and 2) to weigh in on the constitutionality of recent extensive revisions to the UCMJ. As an example of the former, the NMCCA/CAAF Pease case comes to mind (NMCCA 201400165; 75 MJ 180 (2016)). In the absence of clear statutory guidance regarding the standard of "incapable of consenting" in the SA intoxication context, the appellate courts had to develop the standard - which was then adopted in the UCMJ update that followed. As but one example of the latter, one of my SA convictions (for which I was the lead prosecutor) was eventually set aside at ACCA based on what was determined by CAAF to be potentially reversible error at the trial level due to developments in case law that occurred after the conviction (for reference, the case was US v. Tafoya, 2017 CCA LEXIS 733, which was remanded to ACCA by 2017 CAAF LEXIS 746 based on the holding in US v. Hukill, 76 MJ 219 (CAAF 2017)).

Overall, my assessment is that the reform movement has been a net positive - as the increased scrutiny has forced the DoD to recognize the need for change and, in many respects, has inspired the DoD to take the lead from a societal perspective on adjudication of SA allegations. However, this improvement has come at the cost of an accompanying perceptible detriment to good order and discipline as cases that have no business going to trial end up before a judge and, predictably, later on before an appellate panel (or two, or a series thereof). All things considered, we're headed in the right direction - and eventually we'll achieve better balance in referrals *and* appellate numbers. Based on the current circumstances, it seems completely reasonable, though, that the CAAF would have "sex on the brain" as you put it, Brenner.

Great post and excellent questions - thanks for sharing the observation and insight!

Lone Bear

3/18/2021 12:37:41 am

Brian,

Awesome post! Well said.

Vr
LB

Donald G Rehkopf

3/18/2021 10:42:56 am

While I agree with the astute commentary above, I think a broader, historical analysis may be in order. 25 years ago, the crime du jour was drugs - anything and everything involving drugs went to court. USAFE went so far as to mandate that all drug case had to go to a GCM in its idiotic COUNTERPUSH program. That abated significantly after SCOTUS decided Crawford and Melendez-Diaz, and CAAF decided Blazier.

But, it indicated that "command influence" in a particular type of case was the tail wagging the proverbial dog, just as today's crime du jour are sex crimes. I'm not so quick to blame commanders for being "trigger happy" in referrals in the current political atmosphere. Like the post-Vietnam era when virtually all commanders were "battle-tested," today's are no different, i.e., they are not afraid to making a tough decision. Having talked to many of them, they are afraid of making a tough decision, only to be second-guessed and overruled by higher authorities, which history has shown in recent times, becomes career ending. JAGS imho, share much of the blame for not giving clear and definitive guidance to commanders on the topic - but then the question becomes, why?

For those of use who've been around the court-martial scene from the days when you might do 4 or 5 courts a month (or more, if GP's), I think if one studies the historical data on the increase in sex case prosecution, one will find a correlation between the virtual abolishment of the Article 32, process as originally intended, the two-prong purposes of being establishing probable cause and defense discovery, to a joke of a process that allows alleged victims to have their statements drafted by someone else and opt out of personal appearances and cross-examination - SJA's and CoJ's now lack a nuanced foundation in which to properly and accurately advise commanders, and thus, fall back to the "better safe than sorry" routine, which of course infects the CCA's as well.

That then skews the field of potential cases for CAAF to review, and so, here we are. Look at the stats for not guilty verdicts in 120 cases - they are equally skewed, only the other way around. And for those of us practicing in both military and civilian jurisdictions, 120 cases that go to GCMs, half of which would die in a civilian grand jury.

Rant completed.

Philip D. Cave link

3/18/2021 11:24:05 am

Can we say this is the adverse effect on good order and discipline by Congress and the media driving the docket to the exclusion of other serious GoD offenses; likely because of a combination of issues: funding/personnel to handle the enlarged docket, "baseless charges" being referred to trial because the 32 is less of a "bulwark against baseless charges;" and the way in which amendments have been handled has caused many legal issues and confusions.

And yes, Brother Don, I remember the 1980s when we were doing 4-6 cases a week, mostly UA/MM GPs, and then came drugs.

Donald G Rehkopf

3/19/2021 12:40:37 pm

Phil - in the early 1980's when I was practicing in Germany, it was the "H & H" duo - Hash and Heroin - as that's when the urinalysis program went crazy.

Dwight Sullivan

3/18/2021 12:00:31 pm

When I became a trial counsel in Okinawa in 1988, bad check cases were by far the most prevalent cases on our docket. One almost never sees one of those cases anymore.

William Cassara

3/18/2021 12:49:19 pm

In Germany at the same time it was bar fights.

Lone Bear

3/18/2021 04:57:02 pm

Good to see all the Mil Jus legends posting. Way less anonymous posters on the new CAAFLOG.

Philip D. Cave link

3/20/2021 09:20:26 am

I think at the same we might clarify or qualify the history of what offenses most appear on the docket.

Bar fights, check kiting, and similar issues still happen. But the sex offense cases overwhelm the docket and commanders are more likely to use Mast or Officer Hours and the AdSep process.

Can we say, just asking, that the exemplary effect of being court-martialed for kiting checks,bar fights, and other offenses is diminished? And if so, is that a negative for overall good order and discipline? And if so, what is the solution?

Donald G Rehkopf

3/20/2021 02:17:30 pm

Phil - without answering your question, is not the issue more basic? If the premise is "Good Order and Discipline," [GoD] [and I'm not going to jump into that debate here], the current system is an abysmal failure. GoD presupposes that because it is the responsibility of the Commander concerned, that the Commander have at his/her disposal, a wide range of tools, as "justice" (military or not) is not a one size fits all endeavor.

Yet, while perhaps well-intentioned, uninformed or under-informed Congress-Critters have both taken some of the necessary tools commanders need in their discretion, or have made them so palpably unacceptable politically, they are de facto extinct. E.g., mandating GCM's in 99% of sex cases; mandatory minimum sentences, the inability to disapprove or reduce sentences, and this dinosaur, suspending a discharge. Whatever happened to the "restoration to duty" programs where folks we'd spent millions of dollars training NCO's with 8-10 years experience, lost half of their stripes and had a BCD suspended for a year? I can't remember the last time I saw something that - back in the day - was not that unusual.

If commanders really want the GoD model (and I'm not sure all do) vs. the "professional prosecutor" approach, then have them tell Congress that. But, if inexperienced SJA's are substituted for commanders, the cure may be worse than the illness.

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Sex on the Brain

Brenner Fissell

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