Military Sexual Assault Cases - The Other "Victim"

In every military sex assault case I handle, I file a motion to prevent the Government from using the word "victim" in reference to the complainant. Although this might seem petty in the scope of the assorted issues I usually deal with in a sex assault case, in actuality, it can be an extremely critical part of my trial strategy. This past week I represented a young soldier accused of wrongfully engaging in digital and penile penetration of a close friend, a female soldier who was allegedly sleeping. The complainant acknowledged that she had consensual sexual intercourse with my client five weeks earlier, as well as one other occasion involving sexual activity, but not intercourse. In response to a motion I filed to secure access to her mental health records, the military judge released some of the records to us.

At trial, the prosecutors and the complainant agreed that some of information in the records was relevant for use at trial. In response to another motion I filed as to prior sexual assaults reportedly suffered by the complainant, the prosecutors agreed that the fact that she had reportedly been sexually molested as a child, as well as being sexually assaulted by her First Sergeant two years earlier was also relevant. Although she testified that the prior sexual assault by the First Sergeant consisted of him "grabbing her butt," we confronted her with the fact that one of the medical records that was approved for use at trial stated that she had been "raped" by the First Sergeant. The prosecution called an expert witness, a licensed clinical social worker who had been providing treatment to the complainant since the alleged sexual assault by my client.

The expert testified at length as to how the prior sexual assaults she reportedly suffered played a significant role in how she responded to the alleged sexual assault by my client. Evidence was provided that she had multiple symptoms commonly associated with sexual abuse. In response to a discovery request we filed, the prosecution provided us with a copy of all cell phone text records of the complainant. Upon review of the text records, we discovered some texts between her and a key witness in the case which confirmed information we had to the effect that the complainant had been involved with that witness and another woman in preparing and filing a false federal tax return for the other witness. At an earlier session of court, I was able to get the complainant to admit she had in fact committed that serious federal criminal offense of tax fraud.

In addition to the tax fraud offense, the complainant had testified that although she was at this time pregnant, that she was not in a relationship. We confronted her with the current home page of her Facebook account which had a heart on it, with the words "in a relationship" next to it. We also addressed her admission that despite all of her symptoms being consistent with a sex assault victim as testified to by the expert, such as withdrawal from friends, and disassociation, she testified that she had been involved in a "healthy relationship" with the father of the baby she was pregnant with, starting just three weeks after the alleged sexual assault by our client. Although this was essentially a "he said-she said" case as to if she was or was not sleeping when our client engaged in the subject sexual activity with her, our client had sent numerous text messages to her after the incident that were extremely damaging to our case, starting from his total denial of anything happening, to repeatedly apologizing.

He also referred to digitally penetrating her when she appeared to be asleep although he thought she was joking. Now back to the "victim" issue I raised in the pretrial motion. The prosecution agreed not use the word victim while examining witnesses, and that they would caution the witnesses not to use that word victim while testifying. However, as I fully expected, the law enforcement witnesses, as well as the expert witness responded to prosecution questions by referring to her as the "victim," to which I immediately objected. The judge sustained my objection each time. Throughout the trial, my cross examination of the complainant, as well as the expert witness was aggressive and apparently very effective as could be determined by the extensive questions asked of the witnesses by the jury, almost all of which were very defense oriented questions. Upon the prosecution resting its' case, I immediately stood up to advise the court that the defense rested, with no case to be presented.

Although I started this trial with the opinion that, in light of my client's damaging text messages, I would have to advise my client that he should testify, after fully assessing the damage to the prosecution from my cross examination of the complainant, I advised my client that he should not testify and that we should present no evidence whatsoever. During the prosecutor's closing argument, the prosecution acknowledged the case revolved around the credibility of the "victim" to which I wholeheartedly agreed – as I argued to the jury, once she admitted committing the federal tax fraud offense, she had no credibility. I also extensively argued that her admission that she was in a "healthy relationship" just three weeks after the alleged sexual assault, totally contradicted the expert's testimony as to her being "withdrawn" and disassociating with her friends and family.

As to the question of the complainant's assertion that she was not now in a relationship, I argued her denial of that and her explanation as to what was on her Facebook home page was simply not credible. I also noted that despite the fact that the complainant had admitted involvement in a federal tax fraud offense several months earlier, absolutely nothing had been done by the Government to charge her or even to investigate that offense – I argued that was apparently because she was a claiming to be a "victim" of a sexual assault. Although the prosecutor acknowledged that the "victim" had committed tax fraud, she argued that was one of many 'red herrings' that I had raised to muddy the water in an effort to divert the jury's attention away from the only issue in the case which was did my client "wrongfully penetrate her with his finger and penis when she was asleep."

Towards the end of my argument, I approached the jury and reminded them of the multiple objections I made as to the witnesses using the word 'victim' and that each objection was sustained by the judge. Then I looked at the prosecutors, as well as the "victim" who was sitting in the courtroom apparently with her family and friends, paused briefly, and told the jury that there was in fact a "victim" in this case - the young soldier sitting at my table, who was being falsely accused of a sexual assault. Approximately after an hour of deliberation, the jury returned with the verdict of NOT GUILTY. Shortly after the jury was excused and the court closed, two of the jury members sought me out, and congratulated me on a job well done.

Much has been said about how the military is not properly handling sex assault cases in the military. One factor can never be lost in all of this, and that is the foundation of our criminal justice system – that our Soldiers, Sailors, Airmen, Marines and members of the Coast Guard are presumed by law to be innocent, even in a sexual assault case. The fact that a complaint of sexual assault has been made cannot be allowed to overcome the strongest presumption our law provides, that of "innocent until proven guilty." It is up to the court, whether it is a judge or a jury, to determine who the real "victim" in these cases is.

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