Naval Academy sexual assault hearing underscores flaws in system

The hearing into whether three former Naval Academy football players will face a court martial for allegedly sexually assaulting a female midshipman at a party in 2012 has finally ended after eight days and a barrage of questions that would not be allowed in a civilian court.

The Naval Academy case is one of the most high profile examples of the Pentagon’s current system for investigating and prosecuting sexual assault cases, a system that could undergo major changes thanks to a number of Democratic women Senators. A Defense Department report found that an estimated 26,000 soldiers experienced unwanted sexual contact, but of the 3,000 incidents that were even reported, only 302 went to trial.

Article 32 hearings are used to determine whether there is sufficient evidence to proceed to a court martial. Vice Adm. Michael H. Miller, the superintendent of the Naval Academy, decided in June that the Eric Graham, Tra’ves Bush, and  Josh Tate should face charges. Commander Robert Monahan Jr., the hearing’s investigating officer, heard more than 20 hours of testimony testimony from the alleged victim and will review more than 1,500 pages of documents.

“The Article 32 process is yet another example of the broken military justice system,” Taryn Meeks, a former Navy Judge Advocate General lawyer and Executive Director of Protect Our Defenders, said to MSNBC. “It’s a traumatic experience where the survivor is subject to cross-examination for hours or even days.  Article 32 gives defense counsel almost unfettered access to the victim which often re-victimizes that person, and can significantly undermine their shot at getting justice.”

During the 21-year-old Naval Academy senior’s cross-examination, she was asked questions that would not have been allowed if the case were being tried in civilian court, including the state of her mental health and her sexual history. Defense lawyers also questioned the woman about apparent discrepancies in statements she made about the night of the alleged assault, despite the fact she admitted her recollection of events was fuzzy.

Lawyers for the accused men also focused on the fact that the young woman initially did not want to cooperate with investigators, suggesting that her reluctance was evidence of duplicity and not fear or retaliation or danger to her mental health and reputation.

When the Senate returns from its August recess and takes up this year’s defense authorization act, the debate over the two competing plans to reform the military’s response to sex crimes will resume. Senator Kirsten Gillibrand of New York plans to offer a proposal that would remove sexual assault investigations and prosecutions from the chain of command, a move that is supported by many major military advocacy groups and dozens of senators. Missouri Senator Claire McCaskil’s proposal, which was included in the defense bill, would change the way cases are dealt with within the chain of command but leaves the system intact. Both senators support a number of other reforms to the system meant to improve victim advocacy services and reduce retaliation.

Military leaders have said combating sexual assault is a priority, but a close look at how these cases play out raise questions about that commitment. Since President Obama said in May that perpetrators of sexual assault should be court-martialed and discharged from the military, a number of sexual assault cases have been dismissed because judges found that the president’s statements constituted unlawful command influence. The case of Brigadier General Jeffrey Sinclair, only the fourth court martial of a general since 1952, also ran into difficulty when the officer presiding over the court martial had difficulty finding enough unbiased officers who could serve on a jury.

Last year’s defense authorization included a provision that established an independent panel to study the military’s sexual assault epidemic, and a review of the Article 32 process will be a part of that group’s work. The panel has not yet issued any recommendations.