Recently, the Navy Marine Corps Court of Appeals reversed a Marine's conviction of rape. The Marine was sentenced to 24 months in prison and a bad conduct discharge. A reversal like this is quite rare, as the Appellate Courts are loathe to substitute their judgement gleened from reading a record of trial to those panel members who saw the witnesses and were able to judge their credibility.
The facts in this case as portrayed in the opinion leads one to wonder why a prosecutor would prosecute this Marine in the first place. One possible explanation is over the past two years, the Department of Defense has faced an onslaught of criticism in how it prosecutes sexual assault offenses through the media, Congress, class action lawsuits, and a documentary that bemoan commanders who sweep sexual assault offenses under the rug and leave victims with little relief. The DoD has responded by taking steps to increase the number of prosecutions.
Another question is how on earth could a court martial panel convict a Marine under the facts portrayed in the opinion? It is important to understand the UCMJ court martial process. Each unit has a General Court Martial Convening Authority who is typically the Commanding General of the installation. These individuals are responsible for addressing issues regarding the good order and discpline of the members under their command, such as sexual assault awareness training, vehicle safety, DUI's, weapon safety, physical training safety, etc. They are also responsible for hand selecting court martial panel members who typically serve one or two years on a special detail who determine the guilt and sentence of Servicemembers who face court martial. The panel members know that the charges were reviewed by an Article 32 hearing officer who made a recommendation regarding the charges, then sent to the General who, after reviewing the charges with the Staff Judge Advocate, sent them to the panel for trial. These court martial panel members are usually senior officers and enlisted who know what the General expects of them; some of them are rated by the General on their Officer evaluation reports.
Having defended a fair number of Servicemen of sexual assault related charges, I believe that this Marine's failure to take the stand and deny the allegations led to his conviction. I believe that his sentence of only two years in prison and a bad conduct discharge supports my opinion because certainly a Marine who perpetrated such a vicious rape as described by his accuser should have received at least 10 years in prison and a dishonorable discharge. It appears to me that the there was reasonable doubt, but the panel members felt compelled to convict for reasons other than the admissible evidence in front of them that was highly questionable.
This opinion has been covered by other blogs, here, and here. In a post by Jim Clark, an instructor who trains Army prosecutors and defense counsel at the The Judge Advocate General's School, Mr. Clark criticizes the Court for falling "prey to a number of rape myths" and for being affected by cultural cognition.
Hopefully, readers of COTWA understand that the military justice system is an environment that is ripe for our Servicemen being wrongly accused and convicted. This Marine's prosecution flies in the face that the military is soft on sexual assault. Thankfully, the appellate courts have the authority to correct a wrongful conviction when it occurs. Unfortunately, the Serviceman usually has served a significant amount of time in prison before the appellate court can right the wrong.