Captain's Quarters -

The military can sometimes have a very strange attitude toward this sort of thing, as if they fear the negative PR from rape in the ranks more than they want to prosecute the offenders.

I hope that the AP missed something in this story (not that it ever happens... /sarcasm). Otherwise, the USAF does indeed have some 'splainin' to do.

This woman was raped, which is a horrible crime. Those responsible should be prosecuted to the furthest extent of the law. Unfortunately, rape is a very difficult crime to prove without the victim's testimony. Even the strongest physical evidence can be reasonably explained away without her testimony to add context.

The bottom line is that these three airmen are not being prosecuted because this female airman has decided that she does not want to go through a trial. If she had testified, I have no doubt that her minor crimes would have been ignored.

There are a ton of loaded sentences in that article, but it's very short on actual information. We may not be allowed full access to all the information until after the fact (which is sometimes right and proper) but that one report leaves too much up in the air, some of which you already pointed out.

This could range from something horrible for the female airman in question to the complete opposite end of the spectrum.

It sounds to me like she may have been caught with her pants down in more ways than one. There probably is much more to the story than what is being reported, including the possibility that she made up the rape charge to avoid punishment for consensual sex. It wouldn't surprise me at all if the AP were to leave out an important detail like that.

This story might make people rethink the TNR/Beauchamp circus.

See the linked story from the AF Times

From the AF Times article:

"One airman was initially charged with rape, but the charges were dropped when Hernandez later declined to testify at the airmen’s Article 32 hearing.

Hernandez said she decided not to testify because she was emotionally traumatized and wanted to move on with her life.

But then the three airmen and Hernandez were all referred for nonjudicial punishment on charges that they willingly participated in indecent acts.

The three other airmen accepted the Article 15, but Hernandez declined the Article 15 because, she said, she did not want to admit to indecent acts when, in fact, she was raped.

She instead requested trial by court martial"

Air Force Times

By Erik Holmes - Staff writer
Posted : Wednesday Aug 8, 2007 15:19:27 EDT

An airman at Pope Air Force Base, N.C., who says she was gang-raped by three other airmen is now facing charges of indecent acts.

If convicted, Airman 1st Class Cassandra Hernandez could face up to one year in prison, forfeiture of two-thirds of her pay and allowances for one year and a bad-conduct discharge. Her lawyers say she would also have to register as a sex offender, although an Air Force spokesman refuted that.

Hernandez’s court martial is scheduled for Sept. 24.

The 20-year-old airman, a member of the 43rd Operations Support Squadron, claims she went to a party on May 12, 2006, in a dormitory room on base, got drunk and was later gang-raped in another dorm room.

One airman was initially charged with rape, but the charges were dropped when Hernandez later declined to testify at the airmen’s Article 32 hearing.

Hernandez said she decided not to testify because she was emotionally traumatized and wanted to move on with her life.

But then the three airmen and Hernandez were all referred for nonjudicial punishment on charges that they willingly participated in indecent acts.

The three other airmen accepted the Article 15, but Hernandez declined the Article 15 because, she said, she did not want to admit to indecent acts when, in fact, she was raped.

She instead requested trial by court martial.

Officials at Pope did not immediately respond to a request for comment on the case, but they are expected to release a statement.

I can't say 100% in this case, but I know that accusations carry serious weight in the military, particularly after tailhook. Yes, I know tailhook was ages ago, but the military has a very long memory.

The female made an accusation, possibly damaging/destroying the careers of others and then refused to follow up her claims with testimony. While I understand that testifying to rape is an extremely difficult thing to do so is living though the stigma that you raped somebody when you didn't.

There may not have been enough evidence to charge the lady with filing a false report or whatnot because of her refusal to testify. Her refusal doesn't mean it didn't happen. It might mean she was too scared to testify. It also might mean she was just pissed off and wanted to get back at somebody. We'll never know because she wouldn't testify.

Of course, having the full story on this wouldn't hurt either.

Military "justice" provides for punishments of time served for raping/murdering civilians, or a little time off for torturing/murdering prisoners, and you're complaining about this?

Thanks for posting this Captain and holding their feet to the fire. I've never been raped, but I had a guy break into my apartment once when I was in college. Luckily I woke up and walked in on him in my living room where he stood holding a huge marble rolling pin. (He had popped my sliding glass doors out and entered without me hearing him.) I had the presence of mind to scream and when he heard my neighbors coming he ran off. They never did catch him, although the police told me that he was probably stalking me.

I consider myself a pretty brave, tough minded person, but it took another fifteen years before I felt comfortable sleeping in a house alone again -- and even now I don't like hearing strange noises. I can easily imagine why being raped could traumatize someone and why they would not want to go into it in detail.

I'm kinda surprised the air force would go after underage drinking. Good lord, those kids deserve to have a beer if they are old enough to get shot at.

That very cynical and very trenchant old man, Georges Clemenceau, put it succinctly: "Military justice is to justice as military music is to music."

The Air Force is balancing her dereliction of duty (failure to testify) against the rights of the accused. That's a recipe for a disappointing result all the way around, but there's probably no way around it. Trauma or not, an airman needs to act like an airman, and not wimp out when it comes time to appear in court. At a minimum, warriors should be brave enough to testify against criminals when called to.

Only the guilty accept non-judicial punishment (ART 15). The innocent request court martial.
So Dan posts here to drum up views at his site?

I hate to say this, but she brought this court-marshal on herself. Since she refused to testify, the Air Force had no choice but to drop the rape charges. Apparently, the three men involved would have also faced additional charges of providing alcohol to a minor and performing indecent acts in addition to the rape charge.

It looks to me that Air Force had no choice but to charge the women for these charges as well since she refuses to supply testimony as to her "rape" which would had absolved her from her alleged actions of under-aged drinking and indecent acts.

One can only surmise as to her reasons for refusing to testify in the rape case, but I doubt her statement of being too "emotionally traumatized" to testify is one of them as she is apparently willing to offer the same testimony in HER court-martial to acquit herself of the charges she now faces.

Coming to the defense of military justice. The Airman appears not to have been in her quarters. Was she kidnaped? She accuses three others of a heinous crime but won't testify against them? Come on!

I think Shiw may be right:

"Unfortunately, rape is a very difficult crime to prove without the victim's testimony. Even the strongest physical evidence can be reasonably explained away without her testimony to add context."

If she had testified, I have no doubt that her minor crimes would have been ignored.
Posted by: Shivv at August 8, 2007 5:47 PM

But immunity? Immunity from a potential future rape charge if the victim changes her mind decides to testify (which there is no hope for in hell now)? To prosecute an underage drinking charge?

But... in your summation, you're not giving weight to the indecent act she is accused of committing in the citation you quoted.

"...so that the Air Force can win a court-martial on underage drinking [and an alleged act of indecency]?"

Was she raped? Maybe, maybe not. We'll never know. She won't testify.

Did she commit an indecent act? That's what trials are for. The other participants are apparently willing to testify

This may be a cluster-duck from the military, but I'd like to see the facts before I draw that conclusion.

So these men should just simply be found guilty of a very serious charge that the accuser cannot or does not want to back up with sworn testimony, eh?

Are these guys on the Air Force lacrosse team, perhaps? Pope AFB is in North Carolina, not all that far from Duke.

And you know how those airmen/lacrosse players are already, don't you?

Prosecuting The Victim [and the proof that she's a victim is...]?

A woman who filed rape charges now faces related charges -- and the Air Force has given immunity to her [almost alleged — since she's actually not testifying against them] attackers:

So you got several "allegeds" in at the end after the accusatory damage was done, but none at the beginning, the traditional fair place to put a disclaimer of guilty until proven innocent.

OK, let's get this better aligned. She filed a complaint, admitting taking part in "indecent acts". This is probably true because only one was charged with rape. At the Article 32 hearing, similar to a grand jury, the accuser chose to NOT testify. Charges are dropped. No testimony no case.

Having admitted to some of the same acts with the airmen, she is just a LIABLE as the MEN. When offered an article 15 (administrative punishment) she refused ASKING for a court martial. The Convening Authority then has to decide how to proceed, (drop charges, special courts martial, or general courts martial.)

It has become a common practice to provide immunity to accusers/victims and witnesses in the military for sexual assault cases. The military has an entire infrastructure to support sexual assault victims. What makes this case unique is that the victims/accusers are men and not women.

In the past year in the service academies we have had a series of sexual assault cases which have had high press attention. In several of them it has been obvious that the female/victim, after given immunity, should have been charged on several infractions/crimes. Some more, or as serious, as the original charge against the male. Lamar Owens at the US Naval Academy comes to mind. I attended much of that CM and it was obvious to me to be a miscarriage of justice. I'll let you do the research. Or need I remind you of the most famous recent case, Duke LAX?

So in the USAF Academy we have found that as many as 40% of the rape claims in the past couple of decades have been false. Determined by the ?victims? actually recanting. Yes, some of them include cases in the famous they never pursued the rape charges claim that cost several cadets and the Commandant his job.

Over laying all of this is a proactive program to show how females are sexual victims. Not males. Coupled with the proactive victims support programs, many claims are pursued without serious/sufficient evidence.

I suspect this female is not a victim of these male friends/companions, but of the system which has taught her, at least annually, that she is special if she claims rape. A system so rife with a double standard that many cases are over prosecuted. Furthermore, whoever is advising her should be fired. But it is probably one of the Sexual Assault Victims Advocates, brain washed even more than the female airman.

If you think the brain washing is untrue, re-read the comments and see how many are automatically supportive for the poor gyrl. No, I am not a misogynistic, I have just seen too much of this the past few years.

Here's a site: http://www.falserape.net/

Sounds like the three guys dodged a bullet on the rape charges and pleaded to a lesser and then are making her a victim the second time with the charges against her.

Either that or these are the only real charges and the rape thing was bogus.

hmmm....reading this I can think of only 3 points to make.

1.I have personal knowledge of one rape case involving the Air Force the person involved got sentenced to 10 yrs in Leavenworth and that was with a plea agreement at that. Bast...that person shoulda been hung...but thats the system for you...make of that what you will.

2. We are only getting one side of the story. The no information out procedure for Court Martials means we ain't gonna hear from the Prosecutorial side till we are done....the defense seems to want to try this one in the press already. Bad sign.

3. They only charged one of the alleged assailants with rape...that likely means they could only find DNA evidence of one suspect...giving credence to their version of events...not saying theirs was true....but they REALLY needed her testimony.

Quite frankly...I wish I could look at the evidence....cause it'll be a cold day in hell before I trust the reporters to get a story right the first time.

We, and that includes you Ed, don't know enough about what happened to make definitive statements about this matter.

It is a hallmark of a conservative mind to be cautious and circumspect about drawing broad conclusions based on narrow facts..

Lately Ed seems more interested in displaying his bona fides as a "with it " politically correct trendoid than as a reservoir of sober conservative analysis. .

Hear, hear, Terry Gain.

The three men have already pled guilty to indecent acts and accepted non-judicial punishment. Why, then, do they need immunity? And why would the Air Force offer it? Just to nail her on an underage drinking charge and an indecent act that they only knew about because she told the Air Force about it?

And if it's a case of false rape charges, then where are the charges against the woman for filing false charges? If that were the case, then I'd have no problem with the AF throwing the book at her, but then the AF wouldn't need to offer the men immunity. That's what makes no sense at all.

Hopefully, the Air Force Times and the AP have both missed something here. This doesn't add up.

Terry, I have *never* been "with it". I offer my opinions here. I don't have that kind of agenda. If you can't believe that, I can't help you. I have no problem with people disagreeing with me, but that allegation is pretty low. Who on my site will like me more if I criticize the military?

I really don't want to come across as if I'm saying, "Maybe she asked for it," but what if her name was Lynndie England, or she was accusing soccer players instead of military colleagues. There have been too many cases of females claiming rape to get out of punishment for their own misbehavior to immediately jump to a conclusion that we need to get together a lynch mob for the Army.

Although if the Army's prosecutor's name is Nifong and the notetaker is named Beauchamp, then we need to get seriously concerned about a whole lot of things.

Let's go with your explanation they are more likely than not guilty of rape. No hard proof of this, but let's say it's the way it is.

The three men have already pled guilty to indecent acts and accepted non-judicial punishment. Why, then, do they need immunity? And why would the Air Force offer it?

How 'bout this. It's prosecutors' jobs to enforce laws, regulations, etc. They are already copping to indecent acts. So that's done.

The prosecutor would love, I am sure, to have a conviction for rape if they're guilty. The prosecution may even think they're guilty now.

But the prosecution isn't getting any conviction because she won't testify. So that's done.

Now the prosecution has her statement that she committed indecent acts and underage drinking. What's the prosecution supposed to do? Ignore it? Why? Because she says, but won't testify to the fact, that they raped her?

The prosecution's got to go where the evidence leads: indecency all around. But not rape.

Because, while the physical evidence might be suggestive, it could also be rough "indecency" and the prosecution can't know without the evidence of her testimony.

So the prosecutor is moving forward on the only evidence of crime left in its possession and the defendant (I think you should stop calling her "victim" until that is established, and call her what she is which is a defendant or, if you will, accused Airman) refused Article 15.

So court-martial it is. Brilliant lawyer she has.

Also they might bloody well want immunity because they've been falsely accused of rape for what was really consensual sex play and they might be willing to testify because they're damn p—d off about it. Hypothetically.

Let me rewrite my understanding of events leading up to the CM. Start: ALL ARE Caught doing the nasty with four stories being reviewed. The only female accused, then files a rape charge. At the Article 32 hearing, similar to a grand jury, the accuser chooses NOT to testify. Charges are dropped. No testimony no rape case. What remained was the original "indecent acts" charges against ALL four.

The men take their punishment, the female chooses the CM. It could work out for her, but it is a high risk path. In a gender blind (yeah sure) the men are offered immunity to get them to testify, truthfully, about the events.

If the AF wants to prosecute her for indecent acts, they are actively accepting the story offered by the men. They have already been punished for their actions as accepted by the AF. If that's true, then they don't need immunity for testimony because they're not risking anything. The only reason they would need immunity is if their testimony implicates them in other crimes. There's no other reason for immunity.

If the AF offers them immunity, then they must believe that the men have some risk for further charges -- which means that they don't buy their story. If that's the case, why prosecute the woman?

It's the immunity grant that makes this very strange.

Ed

I have great admiration and respect for you and if I've been unfair and less than circumspect in my criticism of you I apologize. But I stand by my opinion that we don't know enough about this case to offer the kind of comment you posted.

Nothing unfair about that last post, Terry. Much appreciated.

It may seem like a side note, but why is she getting charged with anything relating to underage drinking? If she was already on active duty, then she must be *at least* 17. Maybe the military has changed a lot since I retired, but I joined at 17 also. In those days, no matter the drinking age of the state, if you were on base the drinking age was "show us your military ID card".

Old enough to die, old enough to buy.

"If the AF wants to prosecute her for indecent acts, they are actively accepting the story offered by the men. They have already been punished for their actions as accepted by the AF. If that's true, then they don't need immunity for testimony because they're not risking anything."

EXCEPT as you overlook, false rape accusations ruin lives and they don't know whether this Airman will change her mind later, fall back on the rape story, and proceed with prosecution.

As Alan Dershowitz points out, rape is both the most underreported and overreported crime. And they've ALREADY been accused of it once.

If they were guilty of rape they'd want immunity. If they weren't guilty of rape they'd want immunity.

Asking for immunity is just a smart play from their lawyers. Not to do so would be negligent.

It's the immunity grant that makes this very strange."

Yes, it does. I'm sure the men asked for it, but why would the AF grant it? If they're possibly guilty of rape, then the AF shouldn't be prosecuting the woman. It's the Air Force's grant of immunity that is exceedingly strange, not the fact that the men accepted it.

And if the men wouldn't testify without it, how is that different from the woman's refusal? And since they've admitted to the far lesser charge, any insistence that they need immunity to testify to what they've already admitted and been punished for is very, very inconsistent. It's practically admitting that they don't believe the men but are prosecuting the woman anyway.

"Yes, it does. I'm sure the men asked for it, but why would the AF grant it? If they're possibly guilty of rape, then the AF shouldn't be prosecuting the woman."

Wow.

Just wow.

If there's a possibility or rape... just a possibility... then she gets out of any legal culpability for what the prosecution believes happens, which was four counts of indecent acts, three of them owned up to and the fourth one contested to court-martial?

The ultimate get out of jail free card.

As long as there's the possibility of rape... even if the Airman won't testify to that... then she avoids prosecution.

Great legal standard you're setting. No possibility for negative consequences from that precedent.

You should reread the comments of Dave C., Gus, Ray, Tom MacDonald, Sagi, CoREv, and others carefully. Especially Gus.

If it's possible enough that they have to give their three witnesses immunity to put them on the stand, doesn't that indicate some seriously low confidence in their truthfulness?

Again, if they told the AF the truth, they've been punished as much as they can be -- and they don't need immunity. If they need immunity, they need immunity from something worse than what they've admitted.

I understand why they want immunity. I have no idea why the AF would grant immunity to witnesses that have supposedly already received punishment for the crime to which they will bear witness. That makes no sense at all.

If she isn't willing to testify against them, then she wasn't raped, she was willing.

PERIOD.

Sorry, but I have seen several cases where women claimed they were raped for consentual sexual relations because they didnt want to admit they were cheating on their husbands, or they wanted to extort something out of the guy, or they just didn't want to admit to having gone willingly.

And yes, the first case even happened to me. Good thing I had a witness, as it was my life was still made a living hell. Women LIE about rape all the time. If she isn't willing to go to court, then she wasn't raped.

Info please, someone.

Is there little or no possibility of a rape conviction when the victim refuses to testify?

If a rape conviction isn't possible then doesn't it make sense that the AF would grant immunity to these three, find out what actually happened and then discharge some or all of these people? This thing happened over a year ago and it makes sense to me that by now the AF might be fed up with the whole mess and just want to know what to do with these four people's careers.

"If it's possible enough that they have to give their three witnesses immunity to put them on the stand, doesn't that indicate some seriously low confidence in their truthfulness?"

No.

Here's why.

It could be the prosecution is proceeding ethically and does not believe the female Airman's allegation of rape, and instead believes it was 4-counts of indecent acts with related drinking charges.

The male Airmen and their lawyers would understandably be wary about already being falsely accused of rape. The prosecution may agree with them about this and may be willing to subside their fears by granting them immunity for something it believes they didn't do in return for their testimony in order to discipline the female Airman, whom the prosecution believes gave a false statement to obstruct justice.

Regardless of what you believe the facts are, will you at least step back and admit your statement:

"If they're possibly guilty of rape, then the AF shouldn't be prosecuting the woman."

... was irresponsible and would have dampening effects on legitimate prosecutions?

Ed, et al, it is really quite simple.

As long as there's the possibility of rape... even if the Airman won't testify to that... then she avoids prosecution.

Ed, regrettably, women lie about rape. Feminists will tell you it is at an @ 2% rate. Real world studies have shown it to be closer to @20-25%. some military studies have shown it to be as high as 40% at the USAFA.

Most military men will tell you unequivocally that there is a massive double standard in the military. With the original charge hanging over their heads, a perceived biased jury pool, and if just one of the men has an outside lawyer, then a request for immunity was inevitable.

Just my studied opinion. Ed, I'm sorry, but you are demonstrating some of the Nifong phenomenon, disbelief.

Of course she's going to claim rape on the stand. That's why she demanded a court martial. If there's no evidence of rape, then the men have no need for immunity.

People who are innocent do not need immunity to testify, and they don't get it, either, especially on a petty prosecution for an indecent act and underage drinking. The use of immunity is limited to people with substantial exposure to criminal prosecution -- and almost always to convict someone who has committed a more serious crime than they themselves committed. No one gets immunity unless they have committed some unprosecuted crime -- and they've already admitted to the same charges as the woman faces.

ED

The reason for the immunity could be related to the actual physical description of the acts involved.

The guys may have plead to straight sex, but the UCMJ puts them at risk if other alternative sexual activity was involved.

Their testimony to the acts around the lady could hit a whole number of trip wires depending on just how kinky things got.

Daytrader,

Which means that the Air Force would put them on the stand without ensuring that they had the full story? If they committed these acts and the men had been honest, they would have already faced those charges and taken the Article 15. If they're worried that the men haven't told the truth, then putting them on the stand would be prosecutorial misconduct.

One condition of immunity is usually a full accounting of the crimes. If the AF hasn't gotten that, then they have no business putting the men on the stand in a court martial.

Wouldn't they want immunity from a statutory rape charge?

She was 19, so there's no issue of statutory rape.

“The guys may have plead to straight sex, but the UCMJ puts them at risk if other alternative sexual activity was involved.”

If that’s the case then they lied and obstructed justice.

Ed, you're being foolish here. Rape accusations ruin lives. And if there's sex and a woman's testimony there's evidence of rape.

Not ironclad proof, but something that has to be refuted and will haunt them the rest of their lives true or not.

"Of course she's going to claim rape on the stand. That's why she demanded a court martial. If there's no evidence of rape, then the men have no need for immunity."

Not willing to testify for justice, to put away the three man who raped her — but willing to testify to save herself from consequences. Interesting.

Getting back to my more serious point, you are not willing to withdraw from that ridiculous, indefensible position?

From now on — possibility of rape with alleged victims unwilling to assist the prosection = woman shouldn't be prosecuted?

Brilliant.

Under the UCMJ indecent acts , if I remember correctly, could have been something as simple as she did a drunken strip dance for them.

The UCMJ has separate charge areas for multiple sex acts and the prosecution gave the immunity believing he didn't want to limit the testimony because of that potential mine field from the witnesses.

Christoph,

How about this -- the other actors in the incident shouldn't get immunity if they choose to prosecute the woman. How about that? Better?

I have no problem with prosecuting her for filing false charges --- but the Air Force isn't charging her with that. They're only charging her with committing an indecent act and underage drinking, in an incident she reported to the Air Force.

Why hasn't she been charged with filing false charges, and why did they have to grant immunity to the men who have already been punished for committing the same indecent act(s)?

I investigated a couple of these while working in the military. In one, an enlisted Navy woman on one ship went on liberty in Bahrain and hooked up with an enlisted man on another ship. The next night, the man went to the ship of the second ship and told the NCOIC on deck that he wanted to take the young lady out again.

The NCOIC disappeared for a few minutes and then returned with military police. The young man was arrested and charged with rape. After 18 months, in which virtually every claim the woman man proved either false or unsubstantiated, she recanted. It turned out that she was also sleeping with the NCOIC, and panicked when her lover told her that a man was asking for her saying he had a great time the night before.

Unfortunately, the young man had been on penal detail for 18 months. He'd missed getting all his tickets punched for promotion, had been passed over, and his career was essentially destroyed even though he was not guilty.

The rate of false accusations of rape is relatively high (I discuss it at http://www.billoblog.com/?p=134 ). Because the consequences of accusations of rape are so devastating to all involved, the military takes a dim view of folk who want to play games with it -- being coy about the accusations, retracting but not retracting, etc. The charges may be an attempt to make her fish or cut bait. This idea that people should be able to throw accusations out there and destroy other people with them without consequences is a bad one. If she was raped, then there needs to be a prosecution of the rapists. If she was not raped, and is playing games with claims about rape, then she needs to realize that has consequences for her as well as for those she is accusing.

So lets say all that was involved was a drunken strip by her. No sex.

Meets the test for all involved for the indecent act threshold but they don't know for sure if it went beyond that because the guys didn't say it did or refused to say. So the charges for false rape stuff is just he said she said without conclusive proof to charge her.

"Why hasn't she been charged with filing false charges...?"

Because they can't prove it. They'd have to prove a negative she wasn't raped and that's almost impossible. Note the Duke accuser isn't being prosecuted.

Also, the prosecution may be unsure so to prosecute her for something it doesn't know about would be unethical.

Since there is a mile's worth of daylight between:

1. woman shouldn't be charged if there's a possibility she might have been raped
2. prosecution shouldn't have offered immunity

...I'm glad you clarified that. But you used the qualifier, "How about this/that...?"

May I assume you're dismissing the qualifier and that you are categorically accepting the proposition that, yes, it is appropriate to prosecute a woman who has made an accusation of rape not supported by sufficient evidence to bring to trial (not even her own testimony) and there is evidence she committed other crimes?

Christoph,

Yeah, I'll stipulate to that. ;-) I have absolutely no problem charging someone who committed crimes and falsely accused others to cover it up.

However, the grants of immunity in this case make it look like something else happened here entirely, and the Air Force knows it or at least suspects it enough to protect the three men from further prosecution. If there was no rape, and if they honestly admitted to the only crimes they committed, then they don't need immunity, and the Air Force shouldn't have granted it.

Thanks, Ed.

You're welcome! And thanks for your comments here tonight -- good to have you on board.

"She instead requested trial by court martial."

This is the key sentence. Most people with little or no military experience see the term "court martial" and assume it is like the civilian crimianl trial. While it can be like a civilian trial, it also can be a way to prove one's innocence, as this young lady is doing. She REQUESTED a trial by court martial!

Rather than accept the charges and punishment offered (Article 15 non-judicial punishment) she is going to have to prove the other 3 did all these things to her without her consent. This is a big order... She will have to wind up doing the very thing she didn't want to do originally.

If they told the truth, why do they need immunity from a charge that they've already pled guilty to?

Come on, Ed. If you're innocent, why can't we search your house? Why do you need a lawyer?

What id they testify and one fact that they discussed earlier was slightly wrong? Obstruction of justice! So yes, immunity is absolutely a necessity if the AF wants them to testify.

ED

If in the case of the guys they couldn't PROVE rape and plead down to a lesser charge, then they could need immunity to keep from tripping wires for other charges in testifying about what happened then.

So if the guys only admitted or could be proven to have watched her do a drunken strip then the court did what they could, but if it comes out in her trial they made her airtight then they put themselves at risk saying so.

It's a pleasure. As a Canuck, doubly so. Thanks for helping my country with Gomery.

I worked my butt off in the election, mostly online and with the news agencies. A little persistence and relentless logic pays off.

Did I swing even one seat? I'm sure I didn't. But man was it fun walking into the local Liberal candidate's office and telling him and his staff in no uncertain terms what I thought of the ads their party placed attacking their own military -- while they were in power! -- as a potential dictatorship threat.

In Canada.

Americans, if you haven't seen it, watch. You'll get a laugh.

Our Liberal Prime Minister authorized this ad WHILE HE WAS IN CHARGE OF THE CANADIAN FORCES AND HAD ORDERED THEM INTO COMBAT.

I think this gaffe was -- literally -- unprecedented in democratic history.

"Sitting Prime Minister Attacks Own Military During Election -- and Is No Longer Sitting Prime Minister" (40 seconds)

The first comment says "the military can sometimes have a very strange attitude toward this sort of thing" and then goes on to give reasons why like bad PR.

When they first started allowing women aboard ships, my husband was Master Chief of the Command and had to act as policeman for "these types" of complaints. The single women fell into two categories: those who basically hated men and whose sexual orientation would be in doubt should anyone be allowed to inquire, and those who liked to party and have a good time with the guys. The first group saw sexual harassment attached to nearly everything and it could become very disruptive in a command. The second group tended to get pregnant or end up with charges of underage drinking, conduct unbecoming, or other charges that you might call typical for any young 18 or 19 year old who was just sowing wild oats, away from home and parental control for the first time, or just full of hormones. Also disruptive for the command. If the woman wouldn't testify against the guys under oath, chances are there was no there there in the first place. The second type wouldn't charge rape most likely if there wasn't one and if there was, they wouldn't hesitate to testify. Now, if the woman was married, that is a whole different ball game with its own set of problems for the military and how they handle it. But if women want to serve with men side by side in the military where training for combat is the goal, they better get their heads straight and quit thinking they are at a Junior League tea or a NOW convention. When your life is on the line there is no time to worry about the social niceties or someone's gender. And the military doesn't want a rapist in its ranks either so to think they'd wash it under the rug because of PR is not understanding how military discipline channels work.

Ed, and others, you are still trying the men! She is the accused. She requested the CM. They need the witnesses to testify. Witnesses are leery of testifying as they have already been accused of rape. In a CM, if TESTIMONY COMES OUT OF ANOTHER CRIME, it is incumbent on the judge to handle that new matter. I deliberately left "handling" vague, they have much leeway. If the prosecutor hears of any other crime during testimony, they are obligated to "handle" these new matters.

I've already described the potential minefield these men face by testifying. At this time I do not know what the "Convening Authority" is recommending, Special or General Courts martial.

To proceed to CM, they need the testimony of the men. To testify their lawyers requested immunity and got it.

Ed, you are convicting the men of rape. Why even talk about it? It is not part of the trial until she makes it so. It's so representative of what happens in today's courts. It is also why these guys asked for immunity. People trained to have your predilections are going to be on the jury.

Ed, during voir dire you would be excused if you espoused or hinted at what you have said here.

Sara, very insightful. My biggest complaint with Ed's post aside from a statement he made in haste that he later stepped back from -- replacing it with the reasonable opinion (I disagree with) that immunity shouldn't be granted -- is that I am not convinced a rape occurred.

I hate rapists. I despise them no end. To force someone into sex with all it can entail. Depression, suicide, loss of esteem, physical injury, disease, a lifetime of reduced happiness due to misplaced guilt and other, PSTD and other psychological issues --- well, I hate the bastards that do this.

Yet false rape accusations occur. A lot. Particularly if you put someone in a position of stress and consequences they don't want to accept.

Hence the need for trials and such.

I think Ed is too quick to be hard on the prosecution. Better than even money they are trying to do the right thing.

CoREv, I agree with what you said including your last sentence. Ouch!

Thanks Sara. Excellent explanation.

"She will have to wind up doing the very thing she didn't want to do originally."

Posted by: coldoc at August 8, 2007 10:01 PM

'Cause she'll do it to save herself from charges, but not for justice.

I find this suspicious.

Can you find many precedents of where women participating in consensual bad sexual behaviour made accusations of rape to escape consequences?

Oh yeah.

Can you find precedents where a woman refuses to testify against men she says raped her -- to put them away -- but became willing to do so to defend herself from the consequences of an allegation she participated in consensual indecencies with the men?

Not so much. It's bizarre to say the least.

Sara

I can register with what you are saying. I am ex Navy and can remember place where we had a coed locker room and the gals coming to work in the morning would open their lockers , take off their Tshirts , put on a bra and then the uniform shirt.

Later when working in shipyards I often had to enter female berthing spaces to get to equipment in that space and you had to choose between gals grabbing your leg as you went by or others coming out of the shower and dropping their towels to dry their hair.

I did my basic training (13-weeks including infantry component) with 4-women for the Canadian Forces army reserve.

While there were problems with 2-female recruits being unable to make the grade, the other 2 did. In fact, of 37 to start only 13 graduated, which means the women, on average, did better than the men.

There were no problems with women making false accusations that I was aware of; they were quite professional. There was however a problem with one freakazoid male recruit talking about shooting himself while in the mess lineup (I heard this) and he was quickly removed from the course to prevent a Gomer Pyle Full Metal Jacket moment.

When he was removed, it was found he had several pairs of panties from the women hidden in his bedding, which I guess they didn't report for whatever reason (or maybe they did and I didn't know about it).

What a nut. Fortunately, the Army got rid of him. Yep -- men can be bastards. I'm not claiming otherwise. If this woman was raped, my heart goes out to her. I'm just not seeing anything that makes it more likely than not and, even so, there's the reasonable doubt standard, which I think Ed would do well to give more weight.

She requested the CM.
She does not have to testify at her CM. (Right to Remain Silent)

The AF has to prove she willingly participated in the alleged acts..

as to the immunity granted or was it the reminder that the 3 have been punished and they are protected by the 'Double Jeopardy Clause'. -- I have no comment.

She is gambling -- big time.

Chris

I remember multiple port visits to Esquimalt on Canada's west coast when our sub tied up next to the diesel boats you guys had.

They returned the visit a few times and the only thing that was different was that the Canadian's had a "Mascot" on board.

Submariners ashore in port have barracks since there are not enough beds on the sub to go around in port and when the Canadian sub was visiting any beds we had in the barracks that had people on duty on the sub that night were made available for the Canadian sailors.

Well I came back after a night of party hearty and woke up the next morning with this mascot sharing my bed only meant for one.

Got my attention.

From reading the comments, I can see who has served/is familiar with the military justice system and who has not.

The airman doesn't have the option of claiming she wants to "move on". She made the accusation and now she must either testify or withdraw it and suffer the consequences.

Welcome to the world of personal responsibility.

One of these days I really HAVE to tell you the story behind when we almost torpedoed a Canadian helicopter.

I'm sure sanddog is correct on the merits, BUT in today's world the military is less likely to hew to the letter of the regulation in such a case. It's PC, to be sure, but a certain amount of PC helps keep the budgets adequately funded these days.

Sherlock Holmes once noted that once you have eliminated all possibilities save one, that one - however improbable it may seem - must necessarily be the answer.

I suppose she is being prosecuted because there is evidence she filed a false report. There might be other witnesses, or even a video recording of the incident, which credibly contradict her initial claims.

Others pointed out the immunity need not be for a sex crime which did not occur, but could be to cover the revelation of other violations of regulations which might be less severe offenses than filing a false felony report.

Perhaps the best option is to reserve judgment until we know more. We should not assume because when we assume, & etc.

Gee, sounds like a Johnny Sutton case.

Wierd!

So the girl has sex with four guys... was it rape or consensual?
Since she is being charged with underage drinking the my assumption would be that she was intoxicated...and everyone knows you can't consent when you are intoxicated.
And furthermore, who provided her, the underage girl, with the alcohol? One of the guys who allegedly raped her? These guys could be charged with a whole lot of UCMJ offenses, but, hey, they've got immunity.
This whole story stinks... I can understand her not wanting to testify, lots of rape victims don't want to go through the agony of that again in front of a court. If she doesn't want to testify that's her choice. She shouldn't be punished for it.
I'm also making the assumption that NIS sat down and told her how tough the case might be (her words against 4 others) and she opted not to put herself through the ordeal again in court. It happens...
I also realize that there are a lot of women who go through "sex regret" and convince themselves it wasn't consensual, but rape. She has sex with four men and then realizes
"oops, what if they tell everyone the dirty little secret" so then it becomes rape.
Unfortunately, the Navys decision to grant the alleged rapists with immunity is a bunch of bull. As I pointed out; who provided her the liquor, and how could she consent if she was intoxicated.
There ain't nobody clean in this one....
Transfer all of them out of the command to separate commands and call "no foul" for all of them. There should be no need for further BS.

He said - She said. Nothing new here.

However, everyone above has taken on this article as if all the facts, or most of the facts, or at least enough has been printed to make these arguments.

This story from AP, and any other side sources, stinks of the Scott Thomas Beauchamp non-story story. AP has in the past left out a lot of details just to make the military look bad.

Unlike civilian laws, the military has a set of laws that it does live by. Like it or not, no one so far has presented enough details to qualify any of the above arguments. Ask yourselves:

"Why is this story in the news?"
"Who benefits from this story?"

Either the defense lawyer is going to AP or some news agency to get this tried in the open, before court marital trail begins, or

MSM has found another way to make the military out as a bunch of fools.

So I say again - this story does not pass the smell test. Something else is at the root of why this story is in the news.

I think the big sticking point for some people right now is the grant of immunity.

Realize that this is a limited grant, it doesn't mean that these men cannot be prosecuted for crimes, it just means that they cannot be prosecuted based on the testimony that they give during the trial.

Yes the whole thing sounds quite strange and we should try to remain informed about the proceedings and scream foul if we perceive an injustice but for now I think we all need to step back and get more information.

Way too many "sea lawyers" here...Don't you guys usually counsel that we should wait until all the facts are in...? CM are usually "open" proceedings...how 'bout letting the Air Force have a chance at it before crying corruption/bigot/homophobe etc?

The linked article didn't mention this nor have I seen it posted here in the comments. What were the airmen charged with under Art 15? Remember too, that under Art 15, the commander determines whether or not the individual has commited an offense and metes out punishment and there is no record of the crime. A Court Martial on the other hand, if convicted is treated as a felony conviction and will have lifelong consequences. Since, from what I read, the female in question has been charged with underage drinking (by her own admission), I am presuming that the other airmen where offered Non-Judicial Punishment for the same offense or even providing alcohol to a minor. If she takes the Art 15, it ends there. Since by her own admission she consumed alcohol, she will be found guilty of that. As to the indecent acts, she refused to testify at the Art 32 hearing after claiming rape, I am presuming that the AF has granted immunity to the male airmen for those acts.

Three quick points. First, it is not surprising at all that the AF did not charge the defendant with filing a false statement, even if they believe it is false. It is a classic “he said/she said” case, and it would be difficult to satisfy a criminal burden of proof. If the AF prosecutors believe that she is lying but do not believe they can prove it, the last thing they want to do is charge her with the offense so that she can say she was acquitted of the charge of filing a false statement.

Second, on the immunity question, I do not know enough about military law to know the answer to this, but maybe other commenters do. Does acceding to nonjudicial punishment create a double-jeopardy bar to further prosecution in the same way that a guilty plea would?

Third, if the event in question was a night of debauched drunken sex, then it seems likely that full disclosure of the facts would create the potential for additional charges beyond the indecent-acts charge to which the male airmen accepted NJP, including the possibility of false-statement charges for statements made during the investigation. So, it would not be at all surprising for them to demand immunity, even if they had not engaged in rape.

Hi Ed,

I am an Army JAG officer. I have handled similar cases (I do not know anything specific about this case). I can clear up a few points.

First, an Article 15 is an administrative hearing, so double jeapardy does not attach. As an administrative relief from subsequent prosecution, the accused gets credit for any punishment imposed because of the Article 15, but the accused can still be found guilty in a regular court. So, the three men need immunity because thier testimony might upset the judge or a prosecutor and then their testimony would be used against them in a quick trial where they could get substantial penalties. Sometimes judges don't agree with the punishment given by a commanding officer.

So, without further information, the grant of immunity is a standard procedure for witnesses that may have commited crimes of thier own. Especially if the witnesses have confessed all during an Article 15 hearing and recieved punishment. I helped with a case like this where the victim took the article 15 for drinking and being in an unauthorized area of the base while in a war zone (She got a week of extra guard duty). But, she was then clear to testify in the rape case.

The immunity would be limited to bad acts revealed during the Article 15, so any new, not previously revealed acts would be chargable. So, the men in this case are actually to be commended, at least they are standing up and admitting they did something stupid and are taking the chance of further punishment by testifying and attempting to set the record straight.

MAJ Heath Wells

I'm a former judge advocate and can tell you that prosecutors routinely immunize witnesses that they have to order to testify, especially in cases like this. I suspect that there is now little or no indication that a sexual assault took place given that the woman involved does not want to testify further. Rather, I'm guessing that the men's defense counsel told the prosecutor that he would not allow them to participate in the woman's trial without a grant of testimonial immunity, just in case. This is a routine precaution against some inadvertent admission by the men (usually about conduct that no one knows or cares about, but which might be a crime under the UCMJ), and it would be considered malpractice by the defense attorney if he did not insist on such a grant.
What I'm wondering is why the convening authority did not order the woman to testify about the sexual assault, since there is no self-incrimination involved in her describing a crime that happened to her. I've had cases where the victim was actually ordered to testify against her assailant. Since that didn't happen, I'm guessing that the alleged victim (or her counsel) might well be concerned about perjury, and that concern was communicated to the convening authority in some way. The disposition of all charges via nonjudicial punishment (Article 15) probably seemed like a reasonable end to a case that was not really there to begin with. At least until the woman decided to push for a court-martial.
Her decision to ask for a court-martial probably involved a certain amount of brinksmanship on the part of her lawyer, who is betting that the Air Force wouldn't really take a case against an alleged victim to trial. The media reaction, and the Captain's comments here, show that this tactical decision was probably correct. The Air Force has a terrible record of backing down from women who complain about some gender related issue-Kelly Flynn, the Academy cases, Martha McSally and the burqua matter, the female officer allegedly abducted in Kyrgyzstan, etc. I'm betting the defense attorney for the woman in this case is trying to leverage this unwillingness to directly confront these types of complaints into a total acquittal. Unfortunately for the female airman, it looks like the Air Force may be willing to push this one further than it has similar cases in the past. But we'll see--the media firestorm has just started.

It is odd that they aren't charging her with filing false charges. I wonder why.

Even if innocent, I would never agree to testify without immunity (if I were these guys). Doubt they are the sharpest knives in the drawer and a good lawyer would eat them up. Something tells me that Scooter Libby wishes he had struck the same deal. This has all the makings of a politically correct Monty Python "witch trial."

Cheers

The men are testifying against an indecent act on the part of the woman. They have accepted their punishment for whatever offenses they may have committed. Rape is off the table. It is as if it never happened because the woman refused to testify. A good lawyer will ask for immunity against any crimes that might result from inadvertant testimony by his/her client regarding the same incident. Otherwise why would they testify against the woman if they could be charged again on the basis of something they might say.

Thanks RavenJAG, I think the description of history of caving/siding with the female gender issues is more than true, but part of the double standards now ongoing in the services.

It might also be that the pendulum is swinging back to center in these issues. Air Force has been especially embarrassed by recent high profile gender/sex based cases.

For those unaware of the impacts immunity, in the Lamar Owens case the ?victims? witnesses/friends all females except for her boy friend were granted immunity. What did they admit to on the stand?

Sex in the dorm
Abusing vicodin
Using cocaine
Using marijuana
Partying with alcohol in the dorm
Leaving after signing in
Leaving their post while on duty (to go to the party)
Maintaining a party/flop house off the Academy grounds
Abusing alcohol
Drinking under age
Keeping alcohol in the dorm
and several others that slip my mind.

Any one of these would have gotten men thrown out of the Academy, and have.

Immunity protected them, but even with it, it was obvious that they, especially the victim, still lied on the stand.

Before convicting those accused of rape and before questioning the integrity of the woman making the charges, and before condemning the USAF, I suggest everyone take a deep breath and remember the Duke lacrosse team.

There was a tremendous rush to judgement on the part of a lot of people in this country, including much of the Duke faculty, for a whole host of reasons. What was the end result?

One other point; I wouldn't trust the AP with reporting on whether the sun was shining after some of the crap they've pulled over events (or, actually non-events) in Iraq. They have little or no credibility in my book

Captain, typr in UCMJ on a search and you will come up with the DOD Uniform Code of Military Justic and it's links. Please keep on thi story...something smells!
Dave
MSgt USAF (Retired)

Ed - It is likely a matter of the men's attorneys advice. I would insist on any of my clients getting immunity in order to testify about anything.

This is the Scooter Libby era - one slip of the memory and you have a perjury charge, even where there turns out to have been no underlying crime committed by anyone. We are about at a point where any lawyer who lets a client testify without getting immunity is per se guilty of malpractice.

There's not nearly enough information here to begin to figure out who's in the right. There are a few general comments I'd like to add though...

Does anybody know if rape is still a capital offense under the UCMJ? There are already enough other factors making pressing charges difficult in any sexual assault. Telling a woman that doing so might send a fellow soldier to the electric chair certainly wouldn't make the decision any easier.

There's no indication that the woman was physically forced to have sex with anyone. I'd have to guess that even under the UCMJ any non-concensual sex is considered rape, and informed consent doesn't exist when intoxicated. Unless the AP is leaving out a lot (which wouldn't be a big surprise) this would probably fall under the vague umbrella of "date rape."

It would be surprising if she was the only one in that room who had been drinking. If she couldn't give consent while intoxicated, neither could the men involved. Hasn't she, by her own admission, committed sexual assault?

I think perhaps one of the reasons that some of us are having a little heartburn over this is that there have been other cases not mentioned here.
For one, everyone is aware of what happened at Duke: false accusations occur.
For another, I remember the case of a teacher who accused two of her high school students of raping her (they had a weapon with them). Unfortunately, the prosecuter couldn't prove it was the two boys the teacher said it was, and couldn't prove it was rape.
... But because the teacher had "confessed" to the act, she was sent up for statutory rape.
And stories like that can echo into ones like this, leading to a knee-jerk "if it's like she said, it's WRONG."
Also, there's a difference between "I don't want to relive that portion of my life; I don't want to testify" and "I'm going to be FORCED to have that portion of my life replayed in detail; I don't want other people to get it wrong."
Also also, this could be a case with no innocents. I won't assume guilt, but the immunity deal just leaves a bad taste.