After a court martial preliminary hearing for three former Naval Academy football players put a young woman through 30 hours of intrusive cross-examination, three lawmakers want to make it harder for character attacks to be used as part of defense strategies.
Democratic Sens. Barbara Boxer of California and Richard Blumenthal of Connecticut, and Rep. Jackie Speier of California sent a letter to President Obama Wednesday urging him to change a part of the court martial system that allows defense attorneys to ask sexual assault victims personal and explicit questions. During the Article 32 hearing in the Naval Academy, defense attorneys asked the alleged victim how wide she opened her mouth during oral sex and whether she was wearing a bra on the night of the alleged rape. On one day of her cross-examination, the 21-year-old midshipman spent more than 12 hours in court.
"We were shocked and alarmed to learn that Article 32 allows sexual assault victims to be questioned in a manner that is intimidating and degrading, and that we believe has had a major chilling effect on sexual assault reporting. According to legal experts, no civilian court in our nation would allow the questioning that was allowed in the Article 32 proceeding in the Naval Academy case," the lawmakers wrote.
Susan Burke, the lawyer for alleged victim in the Naval Academy case, has filed a lawsuit requesting that the Naval Academy's superintendent recuse himself from the case. In the lawsuit, Burke argues that Vice Admiral Michael Miller, who has the final and sole authority over whether the case goes to a court martial, should have stopped the defense from pursuing such "prolonged and extremely abusive cross-examination," and that he ignored the young woman's repeated requests for more rest.
"The Joint Service Committee on Military Justice is considering changes to the military justice system, but this abuse should not be allowed to stand for another day. Article 32 should be reformed now. Military experts have noted that in an Article 32 proceeding, impugning the character of the victim in sexual assault cases has become a standard defense strategy," the letter read. "This is wrong and it demands immediate remedies – no victim should have to endure such an injustice."
"We are working with our colleagues in Congress to fundamentally change how the military handles sexual assault cases, but our work will not be complete if the Article 32 process allows victims who come bravely forward and report sexual abuse to be harassed and intimated in a pre-trial setting."
A Defense Department report released in May estimated that 26,000 incidents of unwanted sexual contact occurred during the 2012 fiscal year, but that only 3,374 incidents were reported and only 302 were prosecuted. Obama and Secretary of Defense Chuck Hagel both called for an end to the epidemic of assault after a series of high profile cases made the issue impossible to ignore.
The changes suggested in the letter are separate from the competing proposals to reform how the military handles sexual assault cases, but Boxer is currently working on legislation to reform the Article 32 process and plans to introduce it soon. Sens. Kirsten Gillibrand and Claire McCaskill have been collecting support from military brass and legislators since early this summer, and both continue to push despite a fall full of government showdowns over the budget, the debt ceiling, and health care. Boxer and Blumenthal have put their support behind Gillibrand's proposal, which would remove cases from the chain of command. McCaskill's proposal would leave a commanding officer's authority intact.
After a series of hearings this summer at which top military brass testified in favor of keeping prosecutions within the chain of command, and at which victims detailed their experiences with the justice and veteran's health care system, the Senate will decide which plan will be included in this year's defense authorization bill this fall. A military panel is reviewing the military justice system as a whole and could recommend changes to the Article 32 process, but that process will not be complete for months and implementation could be slow.
Survivor advocacy groups support changing the system to make the process more closely resemble a civilian grand jury; Article 32 hearings have no civilian equivalent. "The Article 32 proceedings were originally created to function as a probable cause hearing, but have essentially become an opportunity for the defense to try the case twice," said Nancy Parrish, president of Protect Our Defenders said in a statement. "The current system is not designed to protect victims or achieve justice-just the opposite: it has become another means of intimidating the victim, or at a minimum, lessening the likelihood that justice will prevail in their cases."