Sex Crimes

Student Post - "Wait Until She's Sober": Pentagon Official on Sex Crimes

The military is launching a new crusade against sexual assault. The campaign, which comes after a reported 25% increase in sexual assault in combat zones, advises soldiers to “ask her when she’s sober.” Last week the director of the Pentagon's Sexual Assault Prevention and Response Office, Dr. Kaye Whitley, released a statement that pitched “bystander intervention” to help curb sexual assaults. This prompted a response from Rep. Louise Slaughter (D-Rochester) expressing shock at the statement made by Dr. Whitley. From the NY Daily News:

"This woman is not in the right line of work," Rep. Louise Slaughter (D-Rochester) said of the statement last week by Dr. Kaye Whitley, director of the Pentagon's Sexual Assault Prevention and Response Office.

Whitley's bizarre quote came as she released the military's annual report on sex assault, which showed a 25% increase in combat zones, including 22 cases in Afghanistan and 143 in Iraq.
In pitching "bystander intervention" to curb attacks and harassment, Whitley gave this example: "If you see one of your buddies serve drinks to somebody to get them drunk, maybe what you do is step in and say 'Why don't you wait until she's sober?'

Slaughter was aghast. "I was really shocked anyone would say a thing like that," she said.
In effect, Whitley was telling the troops to "go after her when she's sober - that says she's fair game," added Slaughter, who sponsored the legislation that required the military to report annually on sex assaults and its efforts to curb them.

In a written response to The News, Whitley said Slaughter did not "hear the statement in the context of the overall prevention strategy of the Department."

The statement came from a poster in a military marketing campaign called "Our Strength is for Defending" that is aimed at prevention, Whitley said.

The poster reads: "My Strength is for Defending, so when I saw that she was drunk, I told him, 'Ask her when she's sober.' Preventing sexual assault is part of my duty."

Whitley's annual report showed that the number of sex assaults in the 1.4 million-member active-duty military increased 8% to 2,908 in the year ending in September 2008.

In the abstract I think that the idea behind this program has a good message. If a guy sees another guy (or a girl sees another girl) trying to take advantage of an intoxicated person it’s not a bad idea to go over and say, “hey buddy take it easy because I think she/he is drunk and may not know what is going on”. No one should want their fellow soldier to get into a situation where they can be accused of sexual assault, or commit sexual assault. On the other hand, this is an odd approach in that it seems to advocate pursuing a sexual relationship with another soldier as long as neither party is intoxicated. The policy also does not seem to address any situations aside from a male on female assault scenario. It does not seem to address the situation of male on male, female on male or female on female sexual assault situations. It is a sad circumstance that sexual assaults have risen in combat zones, but I’m not sure if this new campaign is the answer to the problem.

Military Allows Convicted Rapists To Enlist

CBS has an excellent article covering the treatment of women in the military.  The article notes that the U.S. military is issuing "moral waivers," which allows felons, including convicted rapists to enlist. From CBS:

It's a potent environment, with female soldiers working - and living - under hostile conditions with their male counterparts.

One soldier, who asked us to call him Robert, spent three tours in Iraq as a signal unit leader out of Ft. Lewis in Washington state.

“For the female soldiers, it was far harder to adjust,” Robert told CBS News anchor Katie Couric. “Because not only did they have to deal with combat - mortar rounds, rockets, bullets - they also had to put up with male soldiers who were away from their families for a year.”

A decorated soldier in his unit, Robert says he went to his Command on many occasions after female soldiers complained of sexual assaults. Nothing was done.

“The last thing a commander wants, other than a death in his unit, is sexual harassment, or an assault case, because that makes his unit’s command look bad, Robert said.

For Wendy - an idealistic 17-year-old - the military seemed like the answer to her prayers.

“I was mostly going in for school,” Wendy said. “But I was also going in to see the world and travel.”

Deployed as a combat medic, Wendy was thrust into a chaotic and increasingly violent situation. Not long after, she experienced another kind of trauma, when she was assaulted by a fellow soldier in her barracks while she was sleeping.

“He started pushing himself on me,” she said. “And I wasn’t having it. So I started punching him and I actually kicked him in the groin.”

The military has long had a reputation for not effectively combating sexual violence by its soldiers. Adding rapists to the population of recruits will certainly not help.

A Military Trial for Rape with a Twist

Out.com published a feature concerning the trial of Capt. Devery Lane Taylor based upon allegations that he raped a male soldier. The article describes the difficulties and oddities associated with such prosecutions in a "Don't Ask, Don't Tell," military. Among the truly bizarre parts of the story was this segment which included an excerpt from the trial transcript:

Without being able to out anyone as gay officially, in Taylor’s trial government and defense lawyers both resorted to stereotyped circumstantial evidence, pointing out that a soldier who swears to his heterosexuality also trims his pubes or wears a nipple ring or sometimes puts his arm around gay friends. “You’ll hear from him, under oath, that he trims up his pubic hair. He’s a male, and he’s in his 30s, and he trims himself up. That’s how he normally does it,” a lawyer told the jury at one point, talking about one of the accusers. At another, when an accuser said, “I mean, he was draping himself on me. He was constantly trying to come on to me. He was always leaning on me. He always wants to be beside me,” an attorney followed up with “And that is not unusual in the gay community, is it?” Captain Taylor was even asked, “Have you ever received any theater training?” And a line of questioning on the subject of nipple rings produced the following exchange:

Q. He wears a nipple ring?

A. He showed it to me.

Q. He admits that he’s got a nipple ring?

A. Oh, yeah. He showed it to me.

Q. Do you know any straight guys that wear nipple rings?

A. No, I don’t. That’s a gay thing, as far as I know.

So, there you have it. I just don't know what else to say.

Army Seeks to Lower Incidents of Sexual Assault

The U.S. Army is launching a new effort to decrease incidents of sexual assault.  The move is comes in response to new data showing disparate sexual assaults in the Army relative to the other military branches. From The Wall Street Journal:

The Army is launching a new war against an old foe: the lingering problem of sexual violence within the military.

Last month, 80 high-ranking generals gathered at a hotel in Alexandria, Va., for a mandatory, weeklong summit devoted to combating the crime. In a Sept. 22 essay in Army Times, Army Secretary Pete Geren and Gen. George Casey, the service's chief of staff, said it was "repugnant to everything a soldier stands for" and promised a "zero tolerance" policy for harassment or assault.

The approach comes in direct response to a batch of new Pentagon data indicating that 2.6 soldiers per 1,000 reported a sexual assault last year. In the Marine Corps and Navy, it was 1.1 per 1,000; in the Air Force, 1.6 per 1,000. The Army began tracking the numbers only in 2006, and officials say they don't have enough comparable data to determine whether the problem is getting worse over time.

Army leaders hope a major change in their strategy for combating these acts of violence can bring the numbers down. The service has long focused on dealing with the aftermath of an assault. Now it will try to prevent the crime from occurring in the first place.

The centerpiece of the new effort -- known as "I AM Strong," with the I AM standing for "intervene, act, motivate" -- is a call for soldiers to confront peers who are abusing alcohol or exhibiting other possible harbingers of an assault, such as making suggestive comments. The Army also wants soldiers to alert higher-ranking personnel if their colleagues' behavior doesn't improve.

"We're trying to change the culture," said Carolyn Collins, the program manager for the Army's Sexual Assault Prevention and Response Program. "We want soldiers to look for red flags and take steps to address them before they turn into something serious."

The military has been wrestling with the problem for decades. But some female veterans say the Army's macho culture has enabled soldiers to behave in ways that would be unacceptable in the civilian world.

"We've heard all of this talk before, but nothing ever seems to change," said Wanda Story, the national commander of the United Female Veterans of America, an advocacy group. Ms. Story said she was raped twice by fellow soldiers, in 1985 and 1986. She said she continues to be contacted by young veterans who say they were assaulted at the hands of other military personnel.

Just last week, Justice Scalia in his Kennedy rehearing statement seemingly dismissed the idea that the military might have special issues in dealing with sexual violence (albeit against child victims). I think it goes without saying that the military has unique concerns in this area and it is good that leaders are taking efforts to rectify the growing problem.

New Briefs in Kennedy v. Louisiana

As noted by SCOTUSBlog and Sentencing Law & Policy have noted, new briefs are out in Kennedy v. Louisiana. First up is the brief from Kennedy. This is from the SCOTUSBlog summary:

Lawyers for a death-row inmate in Louisiana, arguing that military law is beside the point when deciding the constitutionality of criminal sentences for civilians, urged the Supreme Court on Wednesday to leave intact its recent decision nullifying the death penalty for the crime of raping a child.  Had the Court known at the time of its ruling June 25 that there was a provision in military law on that issue (it apparently did not), that might have deserved mention, but perhaps only a footnote, the new brief filed for inmate Patrick Kennedy said in the case of Kennedy v. Louisiana.

The brief also argued that the Kennedy opinion did not go so far as to strike down the death penalty for child rape if that crime occurs in the military context.  Should there be such a prosecution in the military in the future, the brief said, “this Court will have ample opportunity to consider…whether special military requirements entitle the military to more leeway than states under the Eighth Amendment.”

I obviously agree and think the brief is well-argued. I would say more, but I'm swamped right now. Of interest to blog readers, Crime and Consequences (specifically Kent Scheidegger) is cited by the brief. I'm guessing this will be one of the few (or only) time(s) that Kent is cited by a defendant in a death penalty case. Either way, kudos to Kent and C&C. As for the S.G. brief, this is from SCOTUSBlog:

Meanwhile, the Justice Department in its own new filing urged the Court to reopen the case, and change it, at least by allowing that sentence in “aggravated cases” of child rape, perhaps in a military setting. In a brief invited by the Court, Acting Solicitor General Gregory G. Garre said that the Court should not nullify that penalty in the face of support for it by Congress and the President.  “The Court should not displace a recent and emerging consensus reflected in the judgment of the Nation’s political Branches that a particular punishment is appropriate and proportionate,” Garre contended.

The S.G. brief really adds nothing new beyond its last brief. The S.G. is still relying heavily on Wilkerson v. Utah to establish that the Court cares about military policy in determining what is "cruel and unusual" punishment.

I have more to say about each of the briefs, but you will have read my thoughts in my new article which I am happy to say will be forthcoming in the Northwestern University Law Review Colloquy. The Colloquy has promised me publication by the end of the month which is fantastic and really shows the potential of online law reviews.

My New Article on SSRN

After the Supreme Court requested new briefing in Kennedy v. Louisiana, I decided to start again on a project I had abandoned. I've posted a draft of my short piece, Is Military Law Relevant to the 'Evolving Standards of Decency' Embodied in the Eighth Amendment?, on SSRN. This is the abstract:

On June 25, 2008, the United States Supreme Court issued an opinion in Kennedy v. Louisiana holding that the application of the death penalty to the crime of aggravated child rape violated the Eighth Amendment of the United States Constitution. Three days after the opinion was issued, it was discovered that everyone involved in the case had overlooked a 2006 amendment to the Uniform Code of Military Justice ("UCMJ") that made child rape a death penalty offense. This seeming oversight by the majority led the state of Louisiana and Solicitor General to petition the Court for the case to be reheard. On September 8, the Supreme Court took the highly unusual step of asking for more briefing on whether the case should be reheard. This short article contends that for the Court to grant rehearing based upon the rationales embodied in the Louisiana and Solicitor General's briefs would represent a substantial departure from past Court practice and be contrary to the special treatment that military law has historically received. A careful review of the Court's prior opinions shows that the Court has never considered military law in evaluating the objective indicia of the "evolving standards of decency" even when the military had seemingly relevant provisions. This practice by the Court is almost surely due to its recognition that when Congress amends military law, it only represents a national consensus as to military policy and not civilian policy. As a result, the Supreme Court should not rehear the Kennedy case based upon the majority opinion's omission of the 2006 UCMJ amendment.

If you want to download the paper, click the "Choose Download Location" link near the top of the page. I have no idea why SSRN changed the appearance to make the download link less visible. If you have any comments or suggestions, feel free to email me.

Around the Web

CNN is reporting that a Navy doctor was found guilty of secretly taping Naval Academy midshipmen having sex with girlfriends while they stayed in guest bedrooms at his Maryland home. The doctor faces up to 27 years in the brig and dismissal from the Navy.

The body of an Illinois sex offender was found about 20 miles northwest of Detroit, burned and beheaded.

A county ordinance in North Carolina which bans sex offenders from public parks has sparked debate over "how many civil liberties [sex offenders] should have to give up."

Around the Web

Feminist Law Professors has a post with some frightening statistics about sexual assault within the military.

A county in South Carolina is joined the growing trend of jurisdictions that allows people to sign up for e-mail notifications every time a sex offender registers in the the county.

A Montana high school student is now facing expulsion after someone discovered that he is a convicted sex offender.

An Idaho man was arrested on suspicion of child pornography possession.  The man had been convicted of child sex abuse in Georgia roughly 20 years ago.

A South Dakota man who pleaded guilty to third-degree rape, criminal pedophilia and two counts of sexual contact with young boys was sentenced to 60 years in prison.

Soldier Charged with Spreading HIV

A male Fort Bragg private has been criminally charged with passing the HIV virus to a teenage male during concensual sex.  He will be prosecuted by both civilian and military authorities.  FoxNews has the story .

Private First Class Johnny Lamar Dalton was charged last week by civilian authorities in Cumberland County with assault with a deadly weapon, misdemeanor assault and committing a crime against nature. He is being held under a $50,000 bond and faces the same charges from the military.

Dalton was arrested after the Fort Bragg military police and the Cumberland County Sheriff's Office conducted a five-month-long investigation, where they found that the 25-year-old was engaged in a sexual relationship with a 17-year-old boy he found in a gay online chatroom and then met in person, the boy's mother told WRAL.com.

Last November, Dalton signed a written order agreeing to not have unprotected sex and to notify a partner before he did, a spokesperson for the 82nd Airborn Division told WRAL.com.

His encounters with the boy continued despite the order and despite his having a wife and children. In February, doctors conducting routine blood tests reportedly found that the otherwise healthy teen was HIV positive.

It is unclear from this news account what constituted the "crime against nature"  as the U.S. Supreme Court found a state statute criminalizing sodomy between same-sex couples to be unconstitutional in Lawrence v. Texas in 2003.

Update in Soldier Rape and Murder Case in Iraq

One of the soldiers is accepting a plea bargain.  From USA Today:

One of four U.S. soldiers accused of raping an Iraqi girl last spring and killing her and her family pleaded guilty Wednesday and will testify against the others.
Spc. James P. Barker agreed to the plea deal to avoid the death penalty, said his civilian attorney, David Sheldon.

Talkleft connects the case to the larger struggle over the uneasy relationship between the United States and international law:

To prove we believe in the concept of international law, however, we have to try punish own who have been found guilty of war crimes. If not, the superiors who condone or refuse to act are themselves guilty of violations of the Geneva Convention, which Attorney General Alberto Gonzalez said was so "quaint" that it could be made "flexible" out of existence. MSNBC has an excellent piece on the Roots of Torture. 

We have already treaded dangerously close to the edge of the limits of the Geneva Convention, if not already falling over it, in torturing people for information.

If a factually verifiable prosecution of soldiers for unjustified homicide and a never justifiable rape is not pursued, then we are the bad guys, too.