Scholarship Saturday: The prosecutor’s dilemma—can the jury, or the court-martial panel, be trusted to get it right on consent?
An upcoming issue of the Southern California Interdisciplinary Law Journal (a publication of the University of Southern California) will feature an article by Dr. Ruthy Lowenstein Lazar exploring the reasons that prosecutors decline to pursue sexual assault cases even when they believe the victim: Epistemic Twilight Zone of Consent (hyperlinked to SSRN).
To explore the question, Dr. Lowenstein Lazar interviewed 29 prosecutors “selected from a list of prosecutors with experience in the field of sexual offenses who handled cases of this type regularly.” The applicability of Dr. Lowenstein Lazar’s work to the American military jurisdiction may be affected by the fact that the prosecutors she interviewed were Israeli civilian prosecutors. In particular, as described by Ariel Bendor in Investigating the Executive Branch in Israel and in the United States, Politics as Law, The Politics of Law, University of Miami Law Review, Vol. 54, No. 2 (2000) at 219, the degree of discretion afforded to Israeli prosecutors is less absolute than that afforded to their American counterparts.
Nonetheless, even with those caveats, Dr. Lowenstein Lazar’s findings are still pertinent to the American military justice context since the prosecutorial authorities of both systems (prosecuting attorneys in Israel, and military commanders, advised by judge advocates, in the American military justice system) “[h]ave similar responsibilities and similar professional duties in the two jurisdictions. [A]lso, in the two jurisdictions, the prosecutorial test is ‘a reasonable prospect of conviction[.]’” Epistemic Twilight Zone of Consent at 5-6. As to the latter point, American military commanders are called upon to follow the Secretary of Defense’s published Non-Binding Disposition Guidance, including its call for them to consider “whether admissible evidence will likely be sufficient to obtain and sustain a conviction in a trial by court-martial.” (The Secretary issued that guidance because he was required to do so by the NDAA for FY 2017, Public Law 114-328 (December 23, 2016), as implemented by Presidential Executive Order 13-825 (83 FR 9891, March 1, 2018).
At its core, Dr. Lowenstein Lazar’s article contends that the decision of whether to prosecute a large volume of sexual assault allegations boils down to a “legal discourse of consent” that is hamstrung by what Dr. Miranda Fricker (Professor, City University of New York) refers to as “epistemic injustice.” Epistemic Twilight Zone of Consent at 26. (Oxford definition: “epistemic, adj.—relating to knowledge or to the degree of its validation.”) Specifically, the article asserts, our collective and dominant (“hegemonic”) understanding of what it means to consent to sex was developed largely without input from women. In other words, our collective interpretation of the circumstances that constitute consent (or lack thereof) suffers from “gendered hermeneutical marginalization.” (Oxford definition: “hermeneutic, adj.—concerning interpretation[.]”). Id.
Dr. Lowenstein Lazar’s interviews with prosecutors disclosed that the effect of having a legal discourse of consent that is overburdened by epistemic injustice is that:
[E]ven when the prosecution recognizes the unique dynamics of sexual abuse and believes the victim, its decision is still dictated by the narrow conception of consent held by the court, or one that the prosecution believes to be held by the court.
Id. at 32-33. The emphasis in that quote is original, and conveys a concept of fundamental importance to Dr. Lowenstein Lazar’s findings: the prosecutors themselves, “perhaps because of their experience in the area of sexual offenses, succeed in counteracting archaic conceptions of sex, sexuality, and consent.” Id. at 38. But, even prosecutors who have overcome our hegemonic and epistemically-unjust common understanding of consent will decline to prosecute if they believe the court where the case will be heard lacks such enlightenment. The article refers to this dynamic as “prosecutorial realism.” Id. at 30.
Dr. Lowenstein Lazar acknowledges that there are factors at play in addition to an archaic understanding of consent that make it difficult for a court to convict. She notes, for example, that sexual assault cases can be difficult to prove as they are often “based on a ‘word against word’ scenario” and the prosecution has a heavy burden in the obligation to “prove both lack of consent and the defendant’s mental state.” Id. Nonetheless, her article contends that those evidentiary hurdles do not account for a disparity in how courts and juries treat sexual offense cases as opposed to other criminal prosecutions:
Although the gap between factual and legal truth is a general characteristic of the criminal procedure, and exists not only in sexual offense cases, the unique circumstances of these cases, and the social discourse within which these cases are conducted, greatly increase this gap, and accordingly, create and intensify the hermeneutical injustice discussed in this article.
Id. at 39. In particular, Dr. Lowenstein Lazar asserts that:
[N]orms of consent, heterosexual stereotypical scripts of sex, and rape myths generate renunciation of the idea that the act was consensual. Therefore, victims’ stories (complaints or testimonies) are often [seen by courts as] not plausible, no matter what the evidence are.
Id. at 30.
Dr. Lowenstein Lazar’s articulation of the rationale juries and courts use to discount victim testimony (essentially, a biased conception of consent and the “proper” conduct of women) is un-cited in her article—perhaps because the data is relatively lacking on the behavior of juries in closed deliberations, and attempts to obtain such data have been controversial. See Cornwell, Erin, Opening and Closing the Jury Room Door: A Sociohitorical Consideration of the 1955 Chicago Jury Project Scandal, National Center for State Courts, Vol. 31, No. 1 (2010). However, Dr. Lowenstien Lazar probably is right – it is likely that, like the rest of society, our juries and courts are burdened by “stereotypical scripts of sex” and “rape myths.” But, that is not a complete list of the restraints and constraints placed upon our finders of fact. The article's articulation leaves out the primary factor that leads a court to doubt the testimony of any witness for the government, including complaining witnesses: the presumption of innocence.
Dr. Lowenstein Lazar’s work is certainly valuable for criminal law practitioners. But, its omission of any meaningful discussion of the presumption of innocence diminishes that value. A principle that is so fundamental to modern concepts of justice cannot help but be relevant to the “discourse on consent.” The centrality of the presumption of innocence to everything a criminal court does is such that the right is nearly universally recognized. See Practice Relating to Rule 100—Fair Trial Guarantees—Section C—Presumption of Innocence, ICRC, Customary IHL Database (accessed 16 January 2021). A court obliged to afford the accused every reasonable doubt and “to exclude every fair and rational hypothesis except that of guilt,” United States v. Loving, 41 M.J. 213, 281 (C.A.A.F. 1994), is likely to have difficulty reaching a conviction in a cases which are, according to Dr. Lowenstein Lazar, often “based on a ‘word against word’ scenario.” That reality is, indeed, frustratingly unfair for victims of sexual assault, and the prosecutors who would like to employ the machinery of State to vindicate them. But, the skepticism our courts hold for the government’s allegations is a feature of a system designed to protect liberty from arbitrary government power—that skepticism is by design, it is not a defect.
A second dynamic that Dr. Lowenstein Lazar’s article fails to contend with is that women are not the only group that has been marginalized and excluded from the development of our hegemonic understanding of consent. People of color have doubtlessly been excluded, as well.
The most often-cited rate of false sexual assault allegations is between 2 and 10 percent. Lisak, Gardinier, Nicksa, and Cote, False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases, Violence Against Women Journal (December 15, 2010). That rate of false reporting presumably does not change with the race or ethnicity of the victim doing the reporting. However, we cannot assume that prosecuting authorities correctly identify false allegations at the same rate for all races and ethnicities. Data regarding exonerations show that an inmate wrongfully convicted of sexual assault is three and a half times more likely to be black than white. Gross, Samuel R., Race and Wrongful Convictions in the United States, National Registry of Exonerations, Newkirk Center for Science and Society, University of California Irvine (March 7, 2017).
No data has been collected, to date, to assess whether racial minorities in the military are at a higher risk than their white counterparts of being wrongfully convicted of sexual assault at court-martial, but that concern is certainly raised by the fact that the Department of Defense has failed to remedy long-standing racial disparities in the rate of prosecution and severity of punishment in general, and also has a problem with prosecuting penetrative sexual offenses despite insufficient evidence. This column discussed those concerns, in detail, earlier this month in Scholarship Saturday: We hear drums, drums in the deep.
As such, there is a real concern that our culture's exclusion of racial minorities from the process of creating our hegemonic understanding of consent has likely exposed men from racial and ethnic minority groups to a higher risk of wrongful conviction - including, possibly, in trials by court-martial. But, accused persons of color aren't the only ones to feel the effect of that "epistemic injustice." Data suggests that "gendered hermeneutical marginalization" has likely resulted in an understanding of consent that disadvantages victims who are women of color more profoundly than their white counterparts. Specifically, recent empirical research published by the American Journal of Community Psychology found: “cases involving ‘white’ victims were more likely to have charges filed as compared to ‘non-white’ and ‘black’ victims.” Further, “‘black’ suspects, in general, as well as ‘black’ suspects with ‘white’ victims were more likely to be charged with more serious crimes and for the charges to be filed as felonies.” Shaw and Lee, Race and the Criminal Justice System Response to Sexual Assault: A Systematic Review, American Journal of Community Psychology (May 6, 2019).
The value of Dr. Lowenstein Lazar’s work is somewhat reduced by her failure to account for the exclusion of these other marginalized perspectives from our common understanding of the dynamics surrounding the question of consent. As described above, her work can also be criticized for failing to discuss how the presumption of innocence should weigh into a prosecuting authority’s assessment of the likelihood of conviction. Still, despite those limitations, Dr. Lowenstein Lazar’s findings offer valuable perspective. It is important for commanders and judge advocates to remember that, in many sexual assault cases, what they are being asked to assess is the likelihood that court-martial members will overcome a narrative regarding consent that disfavors affording credibility to women, racial and ethnic minorities, and other marginalized populations. Civilian prosecutors may see the task of convincing 12 jurors to unanimously reject those deep-seated preconceptions as being an insurmountable hurdle. Significantly, military prosecutors do not face that same dilemma. Given the lack of a unanimity requirement, they don't have to persuade all of the court-martial members in their case to abandon those societal norms. A mere 3/4 will do.
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