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Military rape law appears to defy logic, constitution

September 22, 2011

WASHINGTON • Six years ago, Congress tried cracking down on rape in the military. Prompted by reports of sexual assaults in military academies and war zones, lawmakers rewrote the rules. They wanted to protect victims and help prosecutors.

Now it’s clear that the effort backfired.

The politically attractive but poorly understood legal changes have incited courtroom confusion, judicial frustration and constitutional conflict. Extensive interviews and a McClatchy Newspapers review of thousands of pages of court documents and internal studies find a congressionally caused crisis of military justice that few civilians know about.

“The law is an abomination as it is now written,” said Charles Gittins, a former military judge advocate who is now a defense attorney.

Individual military judges likewise assail the new law. One, Marine Corps Lt. Col. Raymond Beal II, called it “horribly flawed.” Another, J.A. Maksym of the U.S. Navy-Marine Corps Court of Criminal Appeals, blasted it as “poorly written, confusing and arguably absurd.” “If you had 100 monkeys with a typewriter, they’d probably come up with something like this,” Air Force Col. Don Christensen declared during a 2009 aggravated sexual assault case.

The revised law has, in particular, complicated trials that involve intoxicated victims and those who say they have been assaulted by acquaintances, two common allegations in the military.

Consider the case of a former Air Force-enlisted man stationed at California’s Travis Air Force Base. Stephen Prather, 23, had been accused of aggravated sexual assault by a guest of a party that Prather and his wife threw in October 2007. Prather said he and the guest, who had been intoxicated, had consensual sex. The woman testified that she fell asleep and woke briefly to find Prather on her. When she awoke again, she said, she found semen on her underwear.

Prather had raised the woman’s alleged consent as a defense. Prosecutors countered that the woman was too intoxicated to give consent.

The problem was that the rewritten law had shifted the burden of proof involving consent, appeals court judges concluded. Prather, as the defendant, had the burden to prove that the alleged victim was capable of consenting. Under the Constitution, though, it’s the prosecution that’s supposed to shoulder the burden of proof.

This “results in an unconstitutional burden shift to the accused,” the U.S. Court of Appeals for the Armed Forces said of the new law in its February 2011 decision dismissing Prather’s conviction.

Prather had served almost 11 months of a 21/2-year prison sentence. He’s awaiting his discharge papers.

“I just want Congress to know this law has messed up a lot of people’s lives,” he said by phone from his home in Houston.

Recently, the military decided not to reprosecute Prather. For other military defendants, the legal ambiguity will continue as challenges inundate appeals courts. The Court of Appeals for the Armed Forces will review several challenges to the law in coming months.

Meanwhile, sexual assaults in the military continue.

More than 4 percent of active-duty women and almost 1 percent of active-duty men reported unwanted sexual contact in 2009, according to the latest annual study from the Pentagon’s Sexual Assault Prevention and Response Office.

All told, the military services completed investigations of more than 3,200 suspects in sex-related crimes in fiscal year 2010. Of these, 16 percent faced court-martial.

Heightened political scrutiny of the military’s handling of sexual misbehavior dates at least to the 1991 Tailhook affair, in which Navy aviators groped women at a convention in Las Vegas. Congressional involvement accelerated in early 2004, after reports of sexual assaults on female troops in Iraq. A year later, the Pentagon established an office dedicated to responding to and preventing sexual assault. Lawmakers also directed the Pentagon to review the military’s laws, known as the Uniform Code of Military Justice.

In an 826-page report, the Pentagon advised that no changes were necessary. Congress thought otherwise and rewrote the sexual assault provisions as part of a fiscal 2006 defense authorization bill.

Rep. Loretta Sanchez, D-Calif., a key proponent of the changes, called them a “major step” in convicting rapists.

Neither Sanchez’s office nor the Pentagon immediately responded to questions.

Among other changes, the revised statute added 13 potential charges, such as “aggravated sexual contact,” which includes sex acts done with a victim who’s “substantially incapacitated,” which lawyers say is ill-defined.

Under the old military code, moreover, prosecutors had to prove that the victim hadn’t consented. The new Article 120 removed that consent provision. The accused can still claim that the victim consented, by relying on “a preponderance of the evidence.” That’s a lower threshold than the prosecution needs to win a criminal conviction. But prosecutors can defeat this claim if they can show beyond a reasonable doubt that the victim didn’t consent.

This burden-shifting poses problems. It defies logic, for one. If the defense has enough evidence to show consent, then, by definition, it has raised a reasonable doubt. One military appeals court called this conundrum a “legal impossibility.”

The other potential problem is constitutional. The Constitution puts the burden of proof on the government, but the new Article 120, in certain circumstances, seems to shift this burden to the defense.

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