PRESS RELEASE: President Obama Signs Executive Order Undermining Rape Shield Protections for Victims of Rape in the Military
FOR IMMEDIATE RELEASE
June 17, 2014 Contact: Brian Purchia, brian@protectourdefenders.com
*** PRESS RELEASE ***
PRESIDENT OBAMA SIGNS EXECUTIVE ORDER UNDERMINING RAPE SHIELD PROTECTIONS FOR VICTIMS OF RAPE IN MILITARY
Commander-in-Chief signs Executive Order Undermining Victims’ Privacy Rights; Denying access to the Draft and without Input from Public or Survivors; Protect Our Defenders Calls on President to Rescind Pentagon Led Effort and Calls on Members of Congress to Join Effort to Protect Victims
Washington DC – President Obama signed an Executive Order last Friday, June 13, that delivers a significant blow to the ongoing efforts by survivors, advocates and lawmakers to modernize the military justice system and protect victims of rape and sexual assault in the military. Without any explanation of how these changes benefit the practice of military law or protect the rights of survivors, the order substantially weakens the protections of Military Rule of Evidence 412 (MRE 412), the military’s version of the “rape shield rule.” These changes are contrary to the intent of Congress, inconsistent with established procedure in sexual assault cases, and exemplify the DoD’s failure to seriously address defects in the military justice system.
Prior to the President’s execution of the June 13th Executive Order, the Rules for Courts-Martial 405(i) (“RCM 405(i)”) prohibited admission of evidence of a victim’s prior sexual behavior. Nevertheless, the rule was interpreted by many investigating officers as permitting consideration of such evidence even though MRE 412 gives such power only to a military judge during a court-martial and not to an investigating officer at an Article 32 hearing. Victims’ advocates and attorneys had been fighting to eliminate the de facto admission of such evidence during the Article 32 preliminary hearing process.
Today, Protect Our Defenders called on President Obama to rescind the portion of the Executive Order allowing evidence of victims’ prior sexual behavior to be admitted at Article 32 preliminary hearings. The advocacy organization also asked Members of Congress to join this call.
“With a stroke of a pen, the President has set back efforts to modernize military justice and protect victims of sexual assault. President Obama had an opportunity to stand with victims and reject this change, which will allow investigating officers and defense counsel to pry into the sexual history of victims of sexual assault, and use the information to smear the victim’s reputation, deterring victims from even reporting their assaults,” said Nancy Parrish, President of Protect Our Defenders. “By this action the President has failed in his promise that he would ‘have victims’ backs.'”
“As the Commander-in-chief, the President has the power to address this national disgrace in the military. Instead of taking the lead to protect the privacy of military sexual assault victims, the President is further exposing victims of sexual assault to intimidation and ridicule, while increasing the likelihood that information regarding their sexual history or inclinations will be used to protect sexual predators,” Parrish said.
The President’s Executive Order (EO) expressly allows the introduction of evidence regarding a victim’s prior sexual history during Article 32 hearings. Article 32 hearings are not part of a court-martial trial, but under changes mandated by Congress, Article 32s are used to determine whether there are reasonable grounds to believe that the accused committed the alleged crime.
In the National Defense Authorization Act for Fiscal Year 2014 (“NDAA 2014”), Congress substantially changed Article 32 from an investigative tool into a probable cause hearing. In analogous pretrial proceedings in civilian criminal practice, the accused does not have any constitutional right to confront or cross-examine witnesses, and there is no right to present evidence about a victim’s prior sexual history. The EO ignores the changes that Congress made to Article 32.
The President signed the Executive Order despite objections raised by Protect Our Defenders (POD) to the President and Secretary of Defense in response to an earlier draft EO that included the changes to RCM 405(i), which were posted by DoD in their October 23, 2012 Federal Register Notice. The Department of Defense decided earlier this year to propose additional amendments to the RCM and to eliminate other changes that were included in that notice. These changes to RCM, pushed through by the Pentagon’s Joint Services Committee, were included in a new “Streamlined Executive Order,” which DoD refused to disclose to the public or Protect Our Defenders despite repeated informal and Freedom of Information Act (FOIA) requests.
“Military brass chose to double down on bad policy, and ignore the clear protections of MRE 412 that ensures only a military judge will conduct a MRE 412 hearing. To compound this affront to victims’ rights, Convening Authorities-often the victims’ commander- are now able to read and consider evidence deemed inadmissible by the Article 32 hearing officer,” said Nancy Parrish. “In other words, the lessons learned in the Wilkerson fiasco have already been forgotten. In that case, the Convening Authority, General Franklin justified overturning the perpetrators conviction by referring to evidence that was ruled inadmissible by a judge. The reality is an accused is now incentivized to smear a victim knowing full well that the evidence will be reviewed by the Convening Authority.”
A victim’s prior sexual behavior is irrelevant to the determination of whether there is probable cause to believe the accused committed sexual assault. Attorneys for the accused seek to introduce such evidence to humiliate, intimidate and dishearten victims so that they will refuse to further participate in the military justice process. Under the rules promulgated by the new Executive Order, even if the investigating officer were to ultimately determine the victim’s prior sexual behavior is inadmissible, such determination would occur only after a hearing where the victim would already have been through abusive cross-examination, and the inadmissible evidence would still be forwarded to the convening authority as part of the investigating officer’s report. This means that a commander serving as convening authority will have the ability to view the most intimate, embarrassing details of a victim’s personal life when determining whether the case should be prosecuted.
In order to encourage the reporting of sexual assault throughout the ranks, victims must believe the system will attempt to protect them throughout the process. Weakening protections of privacy tells our troops that reporting a sexual assault will likely cause undue embarrassment, hardship, and emotional trauma. This is not the message that should be sent.
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Protect Our Defenders Letters to President Obama
https://www.protectourdefenders.com/protect-our-defenders-letters-to-president-obama/
Protect Our Defenders Letter to Secretary Hagel
https://www.protectourdefenders.com/protect-our-defenders-letter-to-secretary-hagel/
Executive Order — 2014 Amendments to the Manual for Courts-Martial, United States
EO Annex related to RCM 405(i)
https://www.protectourdefenders.com/eo-annex-related-to-rcm-405i
New York Times: Intrusive Grilling in Rape Case Raises Alarm on Military Hearings
Baltimore Sun: The Naval Academy sex assault hearing should be the last of its kind
http://www.baltimoresun.com/news/opinion/oped/bs-ed-naval-academy-case-20130916,0,3728710.story
Baltimore Sun: Naval Academy case is fuel for proponents of military justice reform
San Antonio Express-News Editorial: The system on assaults is still broken
Stars & Stripes: Emails show general warned against reversing Wilkerson verdict
http://www.stripes.com/news/emails-show-general-warned-against-reversing-wilkerson-verdict-1.238114
Air Force Times: Lt. col. granted clemency in sex assault case to retire as major
Protect Our Defenders Point by Point Rebuttal of Gen Franklin’s 18 Reasons for Overturning Col Wilkerson’s Sexual Assault Conviction
About Protect Our Defenders: Protect Our Defenders is a human rights organization. We seek to honor, support and give voice to the brave women and men in uniform who have been sexually assaulted while serving their country, and re-victimized by the military adjudication system – a system that often blames the victim and fails to prosecute the perpetrator. Learn more about Protect Our Defenders at www.protectourdefenders.com or on Facebook at http://facebook.com/ProtectOurDefenders or follow us on Twitter at https://twitter.com/ProtectRDfnders.
Protect Our Defenders partners with Attorney Susan Burke, Burke PLLC to advance lawsuits filed against the DoD and service academies for repeatedly ignoring rape, sexual assault and harassment, failing to prosecute perpetrators and retaliating against the victim.
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