The National Defense Authorization Act for FY 2013 directed the establishment of a panel to ". . . conduct an independent review and assessment of the systems used to investigate, prosecute, and adjudicate crimes involving adult sexual assault and related offenses under article 120 of the Uniform Code of Military Justice, for the purpose of developing recommendations concerning how to improve the effectiveness of those systems." (Department of Defense News Release No: 306-13, May 7, 2013)
I attended a two day hearing conducted by this panel in December. Many topics were covered during that session but two made a very strong impact on me.
The first major point of the presenter, Russell Strand, was that anyone can be a sex offender. Mr. Strand made the case that each of us has three very different personalities: one that people see during a normal day at the office; a second that only family and dear friends may know when in a safe environment being yourself; and a third that is unknown to all but its victims. This third personality is so masterful that it evades any kind of profiling. Anyone can be hiding this "Mr. Hyde" personality: your Sailor of the Quarter, a Department Head, the newest person aboard, a shipmate you have know since boot camp. Mr. Strand made it very clear why the "Good Character Defense" should not be considered during the prosecution of an alleged sex offender.
The second significant point of the presentation was an explanation for often major inconsistencies between stories of the victim and the accused. A victim recalls the traumatic episode from the "emotional brain." Her story may seem to lack credibility because it is fragmented, incomplete, inconsistent and different from that of the accused. The offender will be able to relate the incident clearly and sequentially because he has the memories in his "rational brain." This discrepancy may make the difference between a case that is prosecuted versus one that is thrown out.
Due to this difference between the emotional victim and the rational offender, the investigation of a sex crime requires a very different approach when interviewing the accuser. Whereas the typical, "Who, What, When, Where, and Why" technique gets a cogent recount of the incident from the accused, the emotional brain of the victim cannot respond to those questions. Special victim investigators have learned that the interview with the victim is best conducted with open ended questions such as, "What do you remember about that night?" It follows that prosecution and defense attorneys must prepare their cases differently to ensure their client gets a fair trial.
This need for special investigation procedures and case preparation becomes a discussion about the cost of special training as well as a need for significant experience with special victims. Those in support of taking the prosecution of sex crimes out of the chain of command of the accused argue that all the participants, from investigators to attorneys to convening authority need the specialized training and experience that the average military investigator, Judge Advocate General (JAG), Staff Judge Advocate and adjudicating authority do not have. The contention is that a separate, military chain of command that is trained in special victim cases is necessary to ensure a thorough investigation, fair trial and appropriate adjudication.
This change would certainly save training dollars and it would make duty assignment rotation less complicated by creating a specific track for special victim JAGs. But is it necessary?
My question: If the investigators are properly trained and experienced to do a thorough investigation and the attorneys are appropriately trained to try the case, why do the upper echelons have to be specially trained? The military runs on a system where: the enlisted personnel become expert at the nitty gritty; middle management is trained to skillfully apply the "product" of the enlisted; and senior management combines general knowledge, input from middle management and experience to make a final decision.
This panel meets again next week. The theme of the meeting is "The Role of the Commanding Officer" (in a sexual assault case.) I plan to attend and to ask this question.
Pending further enlightenment on this idea, I feel that it is not necessary to circumvent the Commanding Officer (CO) by creating an entirely separate chain of command. That leaves concern about the CO's ability to make unbiased decisions along the way. I do believe that some re-training about sexual assault is necessary at ALL levels of the military. In particular, there are several long-standing myths that, if busted, will allow CO's to be unbiased in their decisions pertaining to sexual assault reports.
