Female veterans sue Pentagon over rape and abuse ignored by military

Military's reaction to rape of female troops, "Handle it" ---BBB raging mad!!!

September 18, 2011
The silent battle for servicewomen: sexual assault
By Melissa Dribben | McClatchy-Tribune News Service

PHILADELPHIA — The U.S. military is struggling to defend troops who are under siege day and night on ill-defined battlefields. Troops who are fighting wars in which it can be impossible to identify the enemy or to know whom to trust. And when they are betrayed, they dare not tell anyone.

They are the nation's women in uniform, and they are being sexually harassed, abused and assaulted at an alarming rate by their fellow soldiers and officers.

Since 9/11, with unprecedented numbers of women serving in Iraq and Afghanistan, the nation's military leaders say that misogyny is undermining troop readiness.

Women enlist for the same reasons as other soldiers, to further their education, establish careers, and serve their country. These were Linda Bullock's motives, too, when she joined the Army Reserve at 18. She wanted to belong to a community based on honor and trust. Something she couldn't find in her own family where she had been repeatedly raped by a close relative.

Bullock was sent to Fort Sam Houston in San Antonio for training.

Although she had never been away from home before, the city girl from Baltimore, "a string bean" at 5-foot-9 and 135 pounds, surprised herself with her toughness. "It was cool," she says.

After two weeks of field exercises, she returned to her barracks desperate for a shower.

While the rest of her fellow soldiers left to get dressed, Bullock stayed behind, luxuriating in the hot water. The bathroom was deserted when she finally wrapped herself in a towel. Suddenly, her drill sergeant appeared.

"Who else is here?" she remembers him asking.

"No one," she said. Then he covered her mouth, threw her down and raped her.

"He acted like he was on a mission," Bullock says. She was strong, but no match for a man of about 6-foot-3 and at least 200 pounds. "And anyway, I was too petrified to move." When he finished, he threatened, "If you tell anybody - not that they'll believe you - you might as well kiss your career goodbye."

So she said nothing about it for the next 25 years.

A 2010 study commissioned by the Department of Defense found that 4 percent of military women on active duty had been sexually abused or assaulted while on the job. But about 70 percent and 80 percent of victims do not report their attacks.

The Department of Veterans Affairs has found that one in five female veterans seeking health care say they have been subjected to sexual intimidation, threat, assault, or rape. And men are abused as well; one in 100 screened by the VA reports sexual trauma.

Soldiers remain silent because they fear that they will not be believed or that they will be blamed for sending mixed messages. They worry about being branded as weak or damaged or untrustworthy.

Among the few victims who come forward, even fewer press charges.

Military courts do not protect a victim's identity as carefully as the civilian justice system does. Confidential conversations between a victim and a psychologist, medical professional, even a chaplain can be used by defense attorneys. And there is skepticism that attackers will be punished.

Of the 2,284 sexual-assault investigations conducted in 2009, nearly half were dropped because evidence was insufficient, the victim declined to pursue the case, or the court ruled that the allegations were unfounded.

In a confidential interview with the Defense Department task force, one military judge advocate general said: "We don't lose cases due to lack of effort or care. They are tough cases."

Recognizing the problem, the nation's military leadership has adopted a new policy toward sexual abuse, said Maj. Gen. Mary Kay Hertog. "We're not going to ignore it, we're not going to excuse it, and we're not going to condone it."

Hertog, the new director of the Sexual Assault Prevention and Response Office, said, "It's all about the climate that is set by that commander on the ground."

Recruits need to be trained to respect and protect one another, response services need improvement, and abusers must be brought to justice. But like any complex system, she said, the military cannot transform itself overnight.

"It's evolutionary. ... It takes a long time to change the culture."

Some victims are tired of waiting. In February, 15 women and two men, both active duty and veterans, filed a class-action suit against the Pentagon. The suit claimed that the military failed to properly investigate rapes and sexual assaults.

The weekend before the 10th anniversary of 9/11, more than 20 additional names were added to the lawsuit, said Susan Burke, the plaintiffs' lead lawyer.

"It is clear there needs to be dramatic and immediate reform," said Burke, former counsel to Philadelphia Mayor Michael Nutter. "The military cannot be permitted to continue to retaliate against soldiers who have been raped and sexually assaulted. The military needs to prosecute the perpetrators, not blame the victims."

"I really wanted to jump out of airplanes," says Michele Roscher.

Home-schooled in a small Massachusetts town, Roscher enlisted in the Army Reserve at 17, determined to serve her country.

"I liked the idea that I was doing something important."

In 2003, she received orders sending her to Iraq and was assigned to a unit in Norristown, Pa., for pre-deployment training, one of three women among 130 soldiers.

Because there was no physical base, they stayed in a hotel. The first night, Roscher joined a group going to a TGI Friday's near Plymouth Meeting Mall.

"My sergeant major bought me my first drink," she recounts. "The first thing I was told is never refuse a beer. If you don't drink a beer someone buys for you, it's called 'alcohol abuse."'

Heavy drinking, she says, enjoys a righteous role in the service. "There's a big feeling that we'd better party while we can because we don't know who's coming home."

After one beer, Roscher was woozy. "I kept saying, 'No, I'm good,' but they kept buying me more beers." The group drifted back to the hotel bar, where the drinking continued. She was unsteady on her feet when a specialist, several years older and one rank above her, offered to walk her to her room. Instead, he took her to his.

"I wasn't coherent enough to figure it out," she recounts. "I remember being on the floor saying: 'No! Stop it!' The next thing I remember, he ... forced me to give him oral sex."

She never reported the incident.

If she had, she felt sure she'd be moved to another unit. "And if a female comes to your unit, everyone knows why. You're labeled." Worse, she says, "I thought I deserved it. I shouldn't have drunk so much."

During her first nine months in Iraq, she dated a soldier who was abusive and used to punch her "playfully," leaving bruises on her body. She stayed with him anyway, figuring that the mistreatment was a small price to pay for the protection he gave her from other men in her unit.

Back in the States, she broke off the relationship, went to Penn State University and earned her degree in political science and criminal justice.

In November 2007, Roscher was redeployed. During that tour, the sexual harassment was relentless, she says. One staff sergeant kept pressuring her to sleep with him, even though he was married.

"What happens on active duty is like 'what happens in Vegas, stays in Vegas.' He told me, 'You don't know my wife's number."'

When she refused his advances, she says, the sergeant "did everything he could to make me look bad" and tried to sabotage her career.

She was sent to Sadr City and survived an attack that killed a major and a female soldier. Before she could recover from the shock, she received an email from an officer. "He said the reason I was brought to Sadr City was so he could look at my ass."

The choices for women soldiers, she says, are simple. "If you're not a bitch, you're a whore. If you talk to guys, if you're nice, it's assumed you're sleeping with them. If you don't go out, you're not one of the guys, and you're hung out to dry. People don't talk to you, and in combat they're not willing to put their neck out for you."

She didn't dare confide in other women, she says. "It's very cutthroat. Even if I said I was sexually assaulted, it's like, 'You're in the military. Deal with it."'

The Defense Department report on sexual assault begins with a quote from then-Secretary of Defense Robert M. Gates: "This type of act not only does unconscionable harm to the victim; it destabilizes the workplace and threatens national security."

The military maintains that sexual assault among troops is similar to date rape among college students. Most troops are between 18 and 24, they drink, test limits and make stupid choices.

The difference is that on a university campus, the victim can distance herself from her attacker, says Patricia Hayes, chief consultant for the VA's health care for women. When a soldier has been assaulted by someone in her unit, "there's an incredible sense of betrayal. It's similar to incest."

Furthermore, in the context of war, where people are being blown up, maimed, and killed, sexual assault can be viewed as a "lesser" trauma, nothing to complain about.

Psychologists theorize that in Iraq and Afghanistan, the strain of living on constant alert, in a restricted to a protected zone with long periods of downtime, may feed the impulse among some troops to prey on the vulnerable.

All service branches now require pre-deployment training to teach troops to protect themselves and to intervene when they suspect abuse. And the VA has been trying to spread the word that help is available, free and confidential.

In February, the Department of Defense contracted with RAINN - the Rape, Abuse and Incest National Network - to set up a 24-hour hotline for servicemen and -women. From any post in the world, victims can use phone, text or an online chat to reach a specially trained advocate who can provide support and help obtain medical services.

During the last six months, the site has received 14,000 visitors, and more than 1,000 have sought help.

Roscher kept her private turmoil to herself for more than five years, accepting promotions and assignments and earning the honor of being chosen to jump out of a plane into the La Fiere drop zone in Normandy on the 65th anniversary of D-Day.

But in 2009, when she received her orders to report to Afghanistan, her past caught up with her. She was constantly crying, panicking at sudden noises, not sleeping or eating well, showing all the signs of post-traumatic stress disorder, a common reaction to sexual trauma.

"I was afraid if I got deployed again," she said, "I was not going to be able to recover."

During a screening at the Coatesville VA Hospital before receiving care for an unrelated problem, she was asked if she had ever experienced unwanted sexual advances in the military.

Her answer led her to Kristine Sudol-Regan, one of the VA's psychologists specializing in military sexual trauma.

Sudol-Regan said it's not unusual for her to be the first person her patients have ever told about an assault.

For Linda Bullock, now 50, revealing her secret to the therapist was the beginning of a long, difficult recovery.

After a psychological breakdown in 2009, she landed at the Coatesville VA, where she was diagnosed with post-traumatic stress disorder. Although she had never been in combat, Bullock's doctors said she had developed PTSD from the rape, which was followed by years of sexual harassment from fellow soldiers and officers, and the crushing weight of her silence.

Bullock's experience is common, says Sudol-Regan. Many military patients joined the armed services to escape dysfunctional homes.

One Defense Department study found that 56 percent of female recruits reported some form of unwanted sexual contact before entering military service and 25 percent had been raped. The study concluded, "Previous victims of sexual abuse or assault are at increased risk for future sexual assault."

The reason for this, psychologists suspect, is that victims signal vulnerability in some way, making them easier targets. Their response to risky situations may also be delayed or inadequate.

Over the last several years, both the Defense Department and the VA have been trying to earn back soldiers' trust and provide victims with the medical and psychological care they deserve.

Each service branch now employs and trains specialists called Sexual Assault Response Coordinators, or SARCs, who teach prevention and response and provide help for victims at all military bases worldwide. And every medical center in the VA system has therapists like Sudol-Regan on staff who specialize in military sexual trauma, or MST.

With Sudol-Regan's help, Roscher and Bullock are mending their lives. Roscher is completing nursing school and is engaged to be married. Bullock is living independently and working for a home health care agency.

"Over the past six years, MST has gotten so much more publicity for veterans to know they can come to us," says Sudol-Regan. "Success is hard to measure. For some, it's the ability to reconnect to their families. Others, just to leave the house is a huge accomplishment."

For still others, like Bullock and Roscher, she said, "it's being able to build healthy relationships, get jobs, and be more able to ask for help when they need it. That's a big one. I credit the veterans for having the courage to come forward and the VA for creating a safe place."

Melissa Dribben writes for The Philadelphia Inquirer.

Read more: http://www.mcclatchydc.com/2011/09/18/124443/the-silent-battle-for-servicewomen.html?storylink=MI_emailed#ixzz1YQTeqTyQ

September 21, 2011
'Flawed' new rape law roils military justice system
By Michael Doyle and Marisa Taylor | McClatchy Newspapers

WASHINGTON _ Six years ago, Congress tried cracking down on rape in the military. Prompted by disturbing 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 review of thousands of pages of court documents and internal studies find a congressionally caused crisis of military justice that few civilians know anything about.

The rewritten sexual assault law puts judges “in an impossible position,” the top military appellate court warned. Military lawyers find it “cumbersome and confusing,” a Pentagon task force noted. It leads to “unwarranted acquittals,” Defense Department officials added. And some judges call it unconstitutional.

“The law is an abomination as it is now written,” said Charles Gittins, a former military judge advocate who’s 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.” Yet another, Air Force Col. Don Christensen, called it “almost incomprehensible.”

“If you had 100 monkeys with a typewriter, they'd probably come up with something like this,” Christensen declared during a 2009 aggravated sexual assault case.

A Senate bill introduced in June and proposed by the Defense Department tries to fix the problems that the earlier congressional action created. The bill is pending.

The present law now under fire has particularly complicated trials that involve intoxicated victims and those who say they’ve been assaulted by acquaintances, two common allegations in the military. The confusion about the law can lead to injustice.

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 an intoxicated guest of a party that Prather and his wife threw in October 2007.

Prather said he and the guest had engaged in consensual sex. The woman, though, testified that she fell asleep and woke briefly to find Prather on top of 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, whom court documents didn’t identify, 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 already had served almost 11 months of a two-and-a-half 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 in a telephone interview from his home in Houston.

“My wife left me. I can’t get a good job. I had to register as a sex offender. My life is ruined. All for something that should have never been a crime to begin with,” Prather added.

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 aggressively 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 ultimately advised that no changes were necessary. Congress thought otherwise and rewrote the sexual assault provisions as part of a fiscal 2006 defense authorization bill. The intention was clear: Lawmakers wanted to assist prosecutors and shield victims.

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

“I'm not a member of Congress, and that's their job to do what they think is necessary,” Christensen, the Air Force judge, said during a trial. “I just think it's a prime example of what happens when legislation is influenced by what they see on ‘Oprah’ and what advocacy seekers propose, as opposed to what's really necessary.”

Sanchez’s office didn’t respond to questions this week.

The Pentagon, in a statement to McClatchy on Wednesday, said it was proposing changes “based on trial court lessons learned and appellate court rulings.” The changes were included in a Senate defense authorization bill that was introduced in June.

The current statute includes the crime of “aggravated sexual contact.” This includes sex acts with a victim who’s “substantially incapacitated,” which lawyers say is ill defined. The Pentagon's proposed changes remove the word "aggravated," for example, and more extensively define "substantially incapacitated."

The proposed changes also include eliminating controversial provisions that shift burdens to the defense.

Under the old military code, prosecutors had to prove that the victim hadn't consented. The present measure removed that consent provision. This was supposed to help focus attention on the defendant rather than the alleged victim.

The accused can still claim that the victim consented, by relying on what’s called a preponderance of evidence. This has a lower threshold than the prosecution needs to win a criminal conviction. However, prosecutors can still defeat this so-called affirmative defense if they can show beyond a reasonable doubt that the victim didn't consent.

This burden-shifting poses several problems. It defies logic, for one. If the defense has enough evidence to show consent, then by definition it's 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 law, in certain circumstances, seemed to shift this burden to the defense.

Consequently, the new rules that took effect Oct. 1, 2007, have been causing trouble just as some had warned they would.

"The guys who didn't want to change the law said, 'This is going to happen,' " said retired Army Brig. Gen. Thomas Cuthbert, who thought that some changes were appropriate. "And, for the most part, it did happen."

Cuthbert assisted the subsequent Defense Task Force on Sexual Assault in the Military Services, which urged Congress in a December 2009 report to go back and fix the problems with the new law.

For now, the military has directed military judges to essentially ignore the troublesome portions of the law when they instruct juries. This still leaves judges in what an appellate court called an “impossible position” as they choose between the law Congress wrote and the instructions the military provides.

This is what happened in San Diego with Marine Corps Staff Sgt. Jose M. Medina.

A Marine lance corporal alleged that Medina, a friend, had sex with her in October 2007 while she was incapacitated from drinking. Medina said she’d consented. After he was convicted, he challenged the law.

Unlike in Prather's case, Medina's judge hadn’t instructed the jury based on the law Congress wrote. Instead, the judge read what amounted to old instructions. In doing so, he sidestepped the questionable law but upheld the Constitution. The conviction stood.

"The only course left open, it appears, is for military judges to continue giving 'erroneous' instructions," noted Judge James Baker of the Court of Appeals for the Armed Forces.

Read more: http://www.mcclatchydc.com/2011/09/21/124823/flawed-new-rape-law-roils-military.html#ixzz1YhC0j1XS

November 28, 2011
Military's newly aggressive rape prosecution has pitfalls
By Marisa Taylor and Chris Adams | McClatchy Newspapers

WASHINGTON — By the time Marine Staff Sgt. Jamie Walton went to trial on rape charges, his accuser had changed her story several times.

A military lawyer who evaluated the case told Walton's commander they didn't have enough evidence to go to trial on sexual assault charges. The prosecutor even agreed. But the Marines ignored the advice.

"Everyone knew I didn't rape her," said Walton, who was acquitted of the charge last year. "But they went ahead with the trial anyway."

Walton's questionable prosecution clashes with the public's perception of a soft-on-rape military. A McClatchy analysis found that the military is prosecuting a growing number of rape and sexual assault allegations, including highly contested cases that would be unlikely to go to trial in many civilian courts.

However, most of the accused aren't being convicted of serious crimes.

Such results are provoking cynicism within the armed forces that the politics of rape are tainting a military justice system that's as old as the country itself.

"In the media and on Capital Hill, there's this myth that the military doesn't take sexual assault seriously," said Michael Waddington, a former Army judge advocate who now defends the cases. "But the reality is they're charging more and more people with bogus cases just to show that they do take it seriously."

McClatchy's review of nearly 4,000 sexual assault allegations demonstrates that the military has taken a more aggressive stance. Last year, military commanders sent about 70 percent more cases to courts-martial that started as rape or aggravated sexual-assault allegations than they did in 2009.

However, only 27 percent of the defendants were convicted of those offenses or other serious crimes in 2009 and 2010, McClatchy found after reviewing the cases detailed in the Defense Department's annual sexual assault reports. When factoring in convictions for lesser offenses — such as adultery, which is illegal in the military, or perjury — about half the cases ended in convictions.

The military's conviction rate for all crimes is more than 90 percent, according to a 2010 report to Congress by the Pentagon.

"The pendulum has swung," said Victor Kelley, a former federal prosecutor who's a defense attorney with the law firm National Military Justice Group. "It may be true that years ago some of these allegations weren't given the attention they deserved. But now many of them are given more deference than they're due."

But legal officials with all four military branches say the low conviction rate shows how difficult it is to convict the suspects, not that innocent people are being sent to trial. One common problem in all courts — military and civilian alike — is that a sexual assault victim's behavior comes under attack as much as that of the accused does. As a result, juries may not convict despite hearing significant evidence that a rape occurred.

Making acquittals even more likely, the military is prosecuting more contested cases under a controversial law that broadens the definition of sexual assault. Under the 2006 law, the military can argue that a victim was sexually assaulted because she was "substantially incapacitated" from excessive drinking and couldn't have consented.

"What would you have us do? Tell the victim she can't get justice just because it's a hard case?" asked Timothy MacDonnell, an Army prosecutor who retired in 2008. "Then you're saying to sexual predators, 'Just be careful and make sure you do it in private and you'll get away with it.' "

In dozens of interviews, however, a wide range of people who are involved in the military justice system questioned whether the military was weighing the proper legal considerations when deciding whether to take criminal action.

Unlike in the civilian justice system, a military commander, not a prosecutor, makes the final call on whether to press charges. At times, the commanders disregard their legal advisers' recommendations and pursue allegations of sexual assault, raising concerns that the anti-rape campaign of advocacy groups and Congress is influencing them.

Even some prosecutors say the strategy has backfired, making it more difficult to crack down on the crime in general.

"Because there is this spin-up of 'We have to take cases seriously even though they're crap,' it creates a kind of a climate of blase attitudes," said one Navy prosecutor, who asked to remain anonymous because she feared retaliation for speaking out.

"There is a pressure to prosecute, prosecute, prosecute. When you get one that's actually real, there's a lot of skepticism. You hear it routinely: 'Is this a rape case or is this a Navy rape case?' "

The reality, of course, is many women and men are raped or sexually assaulted in the military. When confronted with the crime even now, some commanders aren't aggressive enough in cracking down, many from all perspectives agree.

North Carolina native Stephanie Schroeder, for instance, said her superiors were unsympathetic after a fellow Marine followed her into a women's bathroom and raped her.

Her superior said, " 'Don't come bitching to me because you had sex and changed your mind,' " recalled Schroeder, who's since joined a lawsuit alleging that the military failed to protect her from the 2002 assault.

Her attacker was never punished, Schroeder said, while she was disciplined after her commanders concluded that she'd lied.

A federal judge is expected to decide soon whether to give Schroeder and others class action status in suing the military.

But many military attorneys describe cases such as Schroeder's as isolated instances that garner most of the attention and outrage.

"Even with this spotlight shining on the military, it has not eliminated the horror story of some commander ignoring valid charges," said Dwight Sullivan, senior appellate defense counsel for the Air Force. "We haven't prevented the horror stories and now we've created another problem of overcharging."

The pressure ratcheted up in 2003, when female cadets at the Air Force Academy accused commanders of ignoring their sexual assaults. In the wake of the scandal, the military prosecuted several of the accused.

The cases didn't go well. One of the juries took only 20 minutes in 2006 to acquit a defendant. After a judge dismissed charges against another cadet, civilian prosecutors declined to charge him in 2007 because of a lack of evidence.

In fact, none of the men accused in the scandal were convicted of charges related to non-consensual sex, said attorneys who were involved.

Citing such failures, Congress boosted the military's anti-sexual assault budget and crafted the new law to help prosecute cases.

As lawmakers turned up the pressure, the military acted on the demands. The number of all sex-crime allegations sent to courts-martial increased from 113 in 2004 to 532 in 2010, according to Defense Department data.

Too often, however, defendants are being prosecuted despite qualms about the evidence, attorneys said.

In Walton's case, the accuser initially denied having sex with him when her commander questioned her.

After Walton confessed to adultery and urged her to tell the truth, she admitted having an affair with him. At that point, she said in a sworn statement that she and Walton had picked up "protection" before heading to a hotel. She denied drinking any alcohol.

Three months later, she changed her account again, saying Walton had plied her with hard liquor before taking her to the hotel. While they were watching TV on the bed, she said, "he all of a sudden rolled on top of me."

"I don't think I said anything," she said in a statement. "I just remember my clothes coming off and I accepted it was happening."

The woman said she realized she'd been raped after attending anti-sexual assault classes. She notified the lawyer who was defending her against adultery charges. The woman also told her estranged husband.

When a military lawyer, known as an investigating officer, reviewed her allegations, he recommended that the Marines drop the aggravated sexual assault charge.

Not only had the accuser's story changed, friends said she'd told them the sex had been consensual and that she would do it again because she thought her husband was cheating on her.

The commander nonetheless rebuffed the lawyers' advice, pursuing nine charges against Walton that ranged from aggravated sexual assault to indecent language. Walton's possible fate changed from expulsion from the military to 30 years in prison.

"They threw everything at me to see what would stick," he said.

Commanders such as Walton's are instructed to consider the evidence, but they aren't required to follow their lawyers' advice. They also can weigh other interests such as the "good order and discipline" of their troops.

Given the push to prosecute, many commanders may see a trial as the best way to determine whether allegations are true.

"Most of the rape cases that I've defended in the military system never would have gone to trial in a civilian system because the prosecutor would say, 'There's no way I'm taking that to trial because I'm not going to get a conviction,' " said Charles Feldmann, a former military and civilian prosecutor who's now a defense attorney.

"But in the military, the decision-maker is an admiral or a general who is not going to put his career at risk on an iffy rape case by not prosecuting it. It's easy for him to say, 'Prosecute it.' If a jury acquits or convicts, then he can say justice was done either way."

"If a military commander dismisses a case and there's political backlash, he's going to take some real career heat over that dismissal," Feldmann said.

Prosecutors outside the military appear to have more success at trial. There's no exact comparison with the civilian justice system, but a study of the nation's largest counties showed that 50 percent of the defendants charged with rape were found guilty of felonies in 2006, the most recent year for which those statistics are available. In New York state, almost 88 percent of the defendants charged with felony sex crimes were convicted in 2010.

In many civilian jurisdictions, the victim has to be unconscious or physically helpless or some sort of force would have to be used for prosecutors to proceed with sexual assault charges.

"A lot of the cases I help people with today I couldn't prosecute in my old jurisdiction because it's not criminalized by state law," said Teresa Scalzo, a veteran civilian prosecutor and the deputy director of the Navy's Trial Counsel Assistance Program.

While the 2006 law allows the military to pursue more sexual assault allegations, it didn't make the prosecution of such cases any easier, attorneys said.

In one recent case, an enlisted woman said she was drunk and fading in and out of consciousness when Army Spc. Kevin Olds touched her breast and put her hand on his penis. The pair had been drinking heavily together during a party. The woman, who was married, told a friend she "did not stop what was happening because she did not want to hurt (his) feelings," according to court records.

At one point, she said, "No, it's OK." That meant, she testified, that she didn't want him to be mad, but she did not want him to continue. She conceded that he may have misunderstood what she meant.

Olds, who was married as well, said he'd thought the woman had consented.

Earlier this year, an investigating officer warned that "insufficient grounds" existed for a sexual assault prosecution.

A commander decided that charges should be pursued anyway. When the accuser said she'd prefer not to testify, the military sent the case to a summary court-martial, which is the equivalent of a misdemeanor court. Olds represented himself, and was acquitted on Nov. 15.

"It never should have seen the inside of a courtroom," said Charles Gittins, who represented Olds at the outset.

Army Sgt. Derek Akins was supposed to go to trial earlier this year in Fort Riley, Kan., after he was accused of sexually assaulting a fellow enlisted man's wife, according to court documents.

All three had been drinking heavily at a party at the couple's house. The husband said that he and his wife had shared a bottle of rum. The woman said Akins had flirted with her but that she didn't remember any sexual encounter because she'd passed out. The husband, however, contended that Akins had had sex with his semiconscious wife in his presence while all three were in the couple's bedroom.

In a last-minute reversal, the husband said that what had happened had been consensual. The military dropped the sexual assault charge.

"This is how nuanced and difficult these cases can be," said Philip Cave, Akins' lawyer and a retired Navy judge advocate. "The prosecution can be lied to as well."

In fact, an accuser and a defendant can have powerful motives to withhold important facts or lie about consensual sex. The military treats "fraternization" — socializing with someone who's lower in rank — as a crime. It's also illegal to have an extramarital affair or to have sex in some overseas locations.

McClatchy tried to talk to commanders about their roles in specific cases, but they either declined to be interviewed or referred a reporter to public affairs offices.

However, attorneys involved in prosecutions maintained that the military is weighing only the legal merits of cases, not the political ramifications.

"We have seen a push to prosecute more challenging cases," said Scalzo, who added that commanders "have become bolder because they've been educated about the nature of non-stranger sexual assault, especially when alcohol is involved."

Officials also denied that a low conviction rate signals any problems with the cases.

"I don't think it's an accurate way to measure the success of our program," said Janet Mansfield, an attorney with the Army's Office of the Judge Advocate General.

Asked how the Army was determining whether it's working, she responded that it was "hard to define."

"We want to see that due process exists," she said. "We want to see that victims are happy with the experience of the court-martial, if not the outcome."

Walton, however, thinks that the justice system has tilted unfairly in favor of the accuser.

After a two-year ordeal, the Marines convicted him of adultery and sent him to prison for six months. As soon as she made the rape accusation, the service dropped the adultery charge against his accuser. She was promoted, while he received a bad conduct discharge.

After 13 years in the military, Walton has lost his retirement and veteran's benefits, and the ability to attend college for free. And he worries that even an acquittal will be seen as a mark of guilt.

"A lot of people aren't going to like me because I made a stupid decision and I cheated on my wife," he said. "But I don't deserve to be seen as a rapist."

(Michael Doyle and Tish Wells contributed to this article.)

Photos:

Read more: http://www.mcclatchydc.com/2011/11/28/131523/militarys-newly-aggressive-rape.html#ixzz1f7LPRqXr

November 28, 2011
Military's newly aggressive rape prosecution has pitfalls
By Marisa Taylor and Chris Adams | McClatchy Newspapers

WASHINGTON — By the time Marine Staff Sgt. Jamie Walton went to trial on rape charges, his accuser had changed her story several times.

A military lawyer who evaluated the case told Walton's commander they didn't have enough evidence to go to trial on sexual assault charges. The prosecutor even agreed. But the Marines ignored the advice.

"Everyone knew I didn't rape her," said Walton, who was acquitted of the charge last year. "But they went ahead with the trial anyway."

Walton's questionable prosecution clashes with the public's perception of a soft-on-rape military. A McClatchy analysis found that the military is prosecuting a growing number of rape and sexual assault allegations, including highly contested cases that would be unlikely to go to trial in many civilian courts.

However, most of the accused aren't being convicted of serious crimes.

Such results are provoking cynicism within the armed forces that the politics of rape are tainting a military justice system that's as old as the country itself.

"In the media and on Capital Hill, there's this myth that the military doesn't take sexual assault seriously," said Michael Waddington, a former Army judge advocate who now defends the cases. "But the reality is they're charging more and more people with bogus cases just to show that they do take it seriously."

McClatchy's review of nearly 4,000 sexual assault allegations demonstrates that the military has taken a more aggressive stance. Last year, military commanders sent about 70 percent more cases to courts-martial that started as rape or aggravated sexual-assault allegations than they did in 2009.

However, only 27 percent of the defendants were convicted of those offenses or other serious crimes in 2009 and 2010, McClatchy found after reviewing the cases detailed in the Defense Department's annual sexual assault reports. When factoring in convictions for lesser offenses — such as adultery, which is illegal in the military, or perjury — about half the cases ended in convictions.

The military's conviction rate for all crimes is more than 90 percent, according to a 2010 report to Congress by the Pentagon.

"The pendulum has swung," said Victor Kelley, a former federal prosecutor who's a defense attorney with the law firm National Military Justice Group. "It may be true that years ago some of these allegations weren't given the attention they deserved. But now many of them are given more deference than they're due."

But legal officials with all four military branches say the low conviction rate shows how difficult it is to convict the suspects, not that innocent people are being sent to trial. One common problem in all courts — military and civilian alike — is that a sexual assault victim's behavior comes under attack as much as that of the accused does. As a result, juries may not convict despite hearing significant evidence that a rape occurred.

Making acquittals even more likely, the military is prosecuting more contested cases under a controversial law that broadens the definition of sexual assault. Under the 2006 law, the military can argue that a victim was sexually assaulted because she was "substantially incapacitated" from excessive drinking and couldn't have consented.

"What would you have us do? Tell the victim she can't get justice just because it's a hard case?" asked Timothy MacDonnell, an Army prosecutor who retired in 2008. "Then you're saying to sexual predators, 'Just be careful and make sure you do it in private and you'll get away with it.' "

In dozens of interviews, however, a wide range of people who are involved in the military justice system questioned whether the military was weighing the proper legal considerations when deciding whether to take criminal action.

Unlike in the civilian justice system, a military commander, not a prosecutor, makes the final call on whether to press charges. At times, the commanders disregard their legal advisers' recommendations and pursue allegations of sexual assault, raising concerns that the anti-rape campaign of advocacy groups and Congress is influencing them.

Even some prosecutors say the strategy has backfired, making it more difficult to crack down on the crime in general.

"Because there is this spin-up of 'We have to take cases seriously even though they're crap,' it creates a kind of a climate of blase attitudes," said one Navy prosecutor, who asked to remain anonymous because she feared retaliation for speaking out.

"There is a pressure to prosecute, prosecute, prosecute. When you get one that's actually real, there's a lot of skepticism. You hear it routinely: 'Is this a rape case or is this a Navy rape case?' "

The reality, of course, is many women and men are raped or sexually assaulted in the military. When confronted with the crime even now, some commanders aren't aggressive enough in cracking down, many from all perspectives agree.

North Carolina native Stephanie Schroeder, for instance, said her superiors were unsympathetic after a fellow Marine followed her into a women's bathroom and raped her.

Her superior said, " 'Don't come bitching to me because you had sex and changed your mind,' " recalled Schroeder, who's since joined a lawsuit alleging that the military failed to protect her from the 2002 assault.

Her attacker was never punished, Schroeder said, while she was disciplined after her commanders concluded that she'd lied.

A federal judge is expected to decide soon whether to give Schroeder and others class action status in suing the military.

But many military attorneys describe cases such as Schroeder's as isolated instances that garner most of the attention and outrage.

"Even with this spotlight shining on the military, it has not eliminated the horror story of some commander ignoring valid charges," said Dwight Sullivan, senior appellate defense counsel for the Air Force. "We haven't prevented the horror stories and now we've created another problem of overcharging."

The pressure ratcheted up in 2003, when female cadets at the Air Force Academy accused commanders of ignoring their sexual assaults. In the wake of the scandal, the military prosecuted several of the accused.

The cases didn't go well. One of the juries took only 20 minutes in 2006 to acquit a defendant. After a judge dismissed charges against another cadet, civilian prosecutors declined to charge him in 2007 because of a lack of evidence.

In fact, none of the men accused in the scandal were convicted of charges related to non-consensual sex, said attorneys who were involved.

Citing such failures, Congress boosted the military's anti-sexual assault budget and crafted the new law to help prosecute cases.

As lawmakers turned up the pressure, the military acted on the demands. The number of all sex-crime allegations sent to courts-martial increased from 113 in 2004 to 532 in 2010, according to Defense Department data.

Too often, however, defendants are being prosecuted despite qualms about the evidence, attorneys said.

In Walton's case, the accuser initially denied having sex with him when her commander questioned her.

After Walton confessed to adultery and urged her to tell the truth, she admitted having an affair with him. At that point, she said in a sworn statement that she and Walton had picked up "protection" before heading to a hotel. She denied drinking any alcohol.

Three months later, she changed her account again, saying Walton had plied her with hard liquor before taking her to the hotel. While they were watching TV on the bed, she said, "he all of a sudden rolled on top of me."

"I don't think I said anything," she said in a statement. "I just remember my clothes coming off and I accepted it was happening."

The woman said she realized she'd been raped after attending anti-sexual assault classes. She notified the lawyer who was defending her against adultery charges. The woman also told her estranged husband.

When a military lawyer, known as an investigating officer, reviewed her allegations, he recommended that the Marines drop the aggravated sexual assault charge.

Not only had the accuser's story changed, friends said she'd told them the sex had been consensual and that she would do it again because she thought her husband was cheating on her.

The commander nonetheless rebuffed the lawyers' advice, pursuing nine charges against Walton that ranged from aggravated sexual assault to indecent language. Walton's possible fate changed from expulsion from the military to 30 years in prison.

"They threw everything at me to see what would stick," he said.

Commanders such as Walton's are instructed to consider the evidence, but they aren't required to follow their lawyers' advice. They also can weigh other interests such as the "good order and discipline" of their troops.

Given the push to prosecute, many commanders may see a trial as the best way to determine whether allegations are true.

"Most of the rape cases that I've defended in the military system never would have gone to trial in a civilian system because the prosecutor would say, 'There's no way I'm taking that to trial because I'm not going to get a conviction,' " said Charles Feldmann, a former military and civilian prosecutor who's now a defense attorney.

"But in the military, the decision-maker is an admiral or a general who is not going to put his career at risk on an iffy rape case by not prosecuting it. It's easy for him to say, 'Prosecute it.' If a jury acquits or convicts, then he can say justice was done either way."

"If a military commander dismisses a case and there's political backlash, he's going to take some real career heat over that dismissal," Feldmann said.

Prosecutors outside the military appear to have more success at trial. There's no exact comparison with the civilian justice system, but a study of the nation's largest counties showed that 50 percent of the defendants charged with rape were found guilty of felonies in 2006, the most recent year for which those statistics are available. In New York state, almost 88 percent of the defendants charged with felony sex crimes were convicted in 2010.

In many civilian jurisdictions, the victim has to be unconscious or physically helpless or some sort of force would have to be used for prosecutors to proceed with sexual assault charges.

"A lot of the cases I help people with today I couldn't prosecute in my old jurisdiction because it's not criminalized by state law," said Teresa Scalzo, a veteran civilian prosecutor and the deputy director of the Navy's Trial Counsel Assistance Program.

While the 2006 law allows the military to pursue more sexual assault allegations, it didn't make the prosecution of such cases any easier, attorneys said.

In one recent case, an enlisted woman said she was drunk and fading in and out of consciousness when Army Spc. Kevin Olds touched her breast and put her hand on his penis. The pair had been drinking heavily together during a party. The woman, who was married, told a friend she "did not stop what was happening because she did not want to hurt (his) feelings," according to court records.

At one point, she said, "No, it's OK." That meant, she testified, that she didn't want him to be mad, but she did not want him to continue. She conceded that he may have misunderstood what she meant.

Olds, who was married as well, said he'd thought the woman had consented.

Earlier this year, an investigating officer warned that "insufficient grounds" existed for a sexual assault prosecution.

A commander decided that charges should be pursued anyway. When the accuser said she'd prefer not to testify, the military sent the case to a summary court-martial, which is the equivalent of a misdemeanor court. Olds represented himself, and was acquitted on Nov. 15.

"It never should have seen the inside of a courtroom," said Charles Gittins, who represented Olds at the outset.

Army Sgt. Derek Akins was supposed to go to trial earlier this year in Fort Riley, Kan., after he was accused of sexually assaulting a fellow enlisted man's wife, according to court documents.

All three had been drinking heavily at a party at the couple's house. The husband said that he and his wife had shared a bottle of rum. The woman said Akins had flirted with her but that she didn't remember any sexual encounter because she'd passed out. The husband, however, contended that Akins had had sex with his semiconscious wife in his presence while all three were in the couple's bedroom.

In a last-minute reversal, the husband said that what had happened had been consensual. The military dropped the sexual assault charge.

"This is how nuanced and difficult these cases can be," said Philip Cave, Akins' lawyer and a retired Navy judge advocate. "The prosecution can be lied to as well."

In fact, an accuser and a defendant can have powerful motives to withhold important facts or lie about consensual sex. The military treats "fraternization" — socializing with someone who's lower in rank — as a crime. It's also illegal to have an extramarital affair or to have sex in some overseas locations.

McClatchy tried to talk to commanders about their roles in specific cases, but they either declined to be interviewed or referred a reporter to public affairs offices.

However, attorneys involved in prosecutions maintained that the military is weighing only the legal merits of cases, not the political ramifications.

"We have seen a push to prosecute more challenging cases," said Scalzo, who added that commanders "have become bolder because they've been educated about the nature of non-stranger sexual assault, especially when alcohol is involved."

Officials also denied that a low conviction rate signals any problems with the cases.

"I don't think it's an accurate way to measure the success of our program," said Janet Mansfield, an attorney with the Army's Office of the Judge Advocate General.

Asked how the Army was determining whether it's working, she responded that it was "hard to define."

"We want to see that due process exists," she said. "We want to see that victims are happy with the experience of the court-martial, if not the outcome."

Walton, however, thinks that the justice system has tilted unfairly in favor of the accuser.

After a two-year ordeal, the Marines convicted him of adultery and sent him to prison for six months. As soon as she made the rape accusation, the service dropped the adultery charge against his accuser. She was promoted, while he received a bad conduct discharge.

After 13 years in the military, Walton has lost his retirement and veteran's benefits, and the ability to attend college for free. And he worries that even an acquittal will be seen as a mark of guilt.

"A lot of people aren't going to like me because I made a stupid decision and I cheated on my wife," he said. "But I don't deserve to be seen as a rapist."

(Michael Doyle and Tish Wells contributed to this article.)

Read more: http://www.mcclatchydc.com/2011/11/28/131523/militarys-newly-aggressive-rape.html#storylink=omni_popular#ixzz1fJ1sB8qH

Hello to all,
Hey I'm Melanie and I was a victim of rape in the Army in 2002, while stationed in fort hood. I am currently seeking disability for it and I am having so much difficulty doing this case.. I hope that I can become an advocate to all women who have suffered. If any comment or questions contact me : [email protected]. thanx