Blogs from 2015

Should I make a statement to law enforcement? A question that any servicemember must ask themselves if they are the subject of a criminal investigation.

Several weeks ago, a client of MJA requested and received a meeting with his commanding general in accordance with the Army Regulation 600-20 “Open Door” Policy. The MJA client, who is an officer under investigation for sexual assault, wanted to specifically request of the general not to take any administrative action against him that would be permanently filed with Army Human Resource Command, until his pending court-martial had been fully adjudicated. Despite the request being of an administrative nature, the commanding general proceeded to act as the investigator, and asked the MJA client, “so, what did happen that night,” whereby the MJA client, stated, “Sir, my attorney has advised me to not make any statements related to the facts and circumstances of the allegations or investigation.” Upon, hearing this the commanding general, stated, “well, your attorney just hosed you…”.

So is the Lieutenant General correct? Do defense attorneys regularly “hose” their clients when they tell them to remain silent under questioning by law enforcement?

The question of whether to make a statement to law enforcement or to the command is a rather easy one to make in a vacuum, particularly when the servicemember under investigation understands that neither his command, nor law enforcement is looking out for his best interest. However, the invocation of one’s right to remain silent becomes much harder in practice when the full weight of the Federal government is bearing down on you.

1. Even maintaining innocence can amount to charges being preferred against you. Under the Uniform Code of Military Justice, a servicemember can be charged for making false official statements to law enforcement or their command. For example, if the accused were to say, “I never touched her…I have no idea what you are talking about…”, the command could charge the accused with making a statement he knew to be false at the time in which he made it about whether he actually “touched” the alleged victim.
2. Invoking your right to remain silent is not an orders violation. A common misperception, particularly in young servicemembers, is if their command orders him to make a statement then he must make a statement. Any suggestion that servicemember’s Constitutional rights are stripped as soon as they join the military is error; however, there is a perception by servicemembers that if they do not make a statement to their command about the allegations then they will be punished, or at the very least make their command upset with them.
3. Law Enforcement does receive training on interrogative techniques. Criminal investigators often get specialized training on how to conduct interviews or interrogations of the accused. As one would expect, this training provides very effective tools and techniques for the investigator to use during future interviews to elicit incriminating statements by the accused. Some of these coercive techniques can be described as “minimization” (i.e. inferring to the accused that the allegations are not serious), “non-denial” (i.e. not allowing or refusing to allow accused to deny the allegations for long periods of time); and, “false evidence ploy” (i.e. investigator telling the accused that his “DNA is everywhere in the room” when this is not the case). These coercive techniques are taught to the investigators because they are very effective, but many times they can be too effective, and servicemembers (particularly young and less intelligent) can confess to things they simply did not do.

So should a servicemember make a statement to law enforcement when they can be charged for merely maintaining their innocence? Should they make a statement when their command and law enforcement have already identified them as a suspect? Should they make a statement when law enforcement are trained to not allow the suspect to deny the allegations?

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Why Would Anyone Make A False Allegation Of Sexual Assaulted?

Much ink has been spilled over the military’s handling of sexual assaults over the past decade. Some in the general public think that the military doesn’t take sexual assaults, or allegations thereof, seriously, or worse yet, that the military establishment is complicit in crimes against women in or out of the military. There are special interest groups, media outlets, and politicians, like Senator Kristen Gillibrand, who have led the charge to push a narrative that women in the military are being preyed upon by their male counterparts with impunity. Whether there is any truth or data that supports this notion, the military has taken action, both in and out of the court system. Over the next several months, MJA will cover some angles of “Sexual Assault in the Military” that does not get much attention.

As former Judge Advocates, and now a civilian law firm that specializes in the criminal defense of active duty, MJA is frequently asked by opposing counsel, law enforcement, medical, friends, and family: “well if the alleged victim is lying, why would she ever lie about something so serious as sexual assault?”

In the military there are many motives for the alleged sexual assault victim to lie as to whether the incident occurred or not, or whether the sexual act was consensual. Below, are the top three motives to fabricate that MJA has uncovered in the past several years.

1. The alleged victim is married. When there is little doubt that sex occurred between the accused and the alleged victim, and the alleged victim is married, it places the alleged victim on the horns of a dilemma where she needs to make a decision between taking responsibility for the adulterous act, and the harsh consequences that follow; or, she can claim to her husband, friends, family, law enforcement that she was really drunk, and did not know what she was doing, and she was taken advantage of in her drunken state. If you were the alleged victim, and you had a choice between making a false allegation, and play the victim card, or take accountability and admit you cheated on your husband, what would you do?
2. Consensual acts can be punitive. Under the UCMJ, active duty military, including women, can be charged and prosecuted for fraternization, adultery, under-age drinking, all of which are consensual in nature. Thus, a 20 year old female, Corporal in the Army, who has sex with a male Specialist from the same unit at an off post party, would be in violation of two specifications of Punitive Article 92 for fraternizing, and under-age drinking, as well as in violation of Punitive Article 134 for the adultery. However, if that same Corporal says that she was really drunk, and was taken advantage of by the Specialist at the party, then it is highly unlikely the command would take any punitive action against her; but rather, the command would treat her has a victim of sexual assault, and give her a Victim Legal Counsel, and she would be moved out of the unit. The unintentional consequence of the military forcing all servicemembers to take sexual assault training is that the women servicemembers are intimately familiar with how her command would treat her if she was a “victim.”
3. Lying in the military is a crime. An often over looked motive to fabricate is the lie itself. Under the UCMJ, a servicemember who provides a false official statement can be charged under Punitive Article 107. At MJA, we often call this the “continuing” motivation to lie, that being the alleged victim sticking to her original false allegation in order to protect herself from her own prosecution. Taking the same 20 year old, female, Army Corporal, above, if she told command or investigators that she was a victim of a sex crime, but then felt guilty or had second thoughts about her original allegation of sexual assault would have to make a very difficult decision on whether to recant her original story, or face prosecution for a false official statement. If you are keeping track, this Army Corporal would now be facing two 92’s, a 107, and a 134 if she decided to recant her story. Do you see why alleged victims will subject themselves to a long, arduous judicial process, including rape kits, cross examinations from defense counsels, and the embarrassment of taking the stand? If your answer is self-preservation, you are correct.

We would be honored to serve as your sexual assault defense lawyers during the period of your military legal process. Please get in touch and arrange your free initial consultation.

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