The Air Force Academy, like the rest of the Air Force, and military for that matter, are reactionary when it comes to bad press. As you may know, when a rape allegation is made, it is investigated by the AFOSI. The case is then forwarded to the legal office who evaluates and often conducts further investigation. Based on the evaluation and investigation by the legal office, the lawyers in the legal office (Chief of Justice or Staff Judge Advocate) recommend to the accuseds commander how to dispose of the case and what charges are raised by the investigation.
If the commander decides to prefer charges against the accused individual in a rape case, those charges must first be investigated in an Article 32 hearing where the presiding Investigating Officer makes recommendations about how the case should be disposed of. These recommendations go to the Convening Authority who can follow the recommendations or not depending on his/her own discretion. At each step in the process, independent judgments are supposed to be made based on the ultimate interests of justice. There is a lot of discretion at each step or, at least, there is supposed to be.
It used to be that questionable rape allegations could be stopped before a court-martial because someone exercising their discretion determined the allegation was not credible. The landscape changed dramatically after the Academy rape scandal. The Academy, the Air Force and, by implication, the military at large, received extremely bad press regarding how they handled rape allegations. The press portrayed the Academy as anti-women and alleged that rape allegations were ignored and retaliation taken against women who raised such allegations.
Because of this bad press, the Academy, the Air Force, and the military at large has reacted with new initiatives to try to prevent these allegations and look like advocates for alleged rape victims who make these claims. For all intents and purposes, the discretion is gone. If a woman alleges rape, no matter how much she or the allegation lacks credibility, that allegation will end up at trial. If someone in the process were to decide not to take the allegation to trial, the militarys fear is that the alleged victim would end up on news programs and the talk show circuit preaching against the uncaring, chauvinistic military. In addition, the military branches are conducting mandatory sexual assault awareness briefings in which the law is being misstated (more on this below). This only adds to the problem.
This reactionary change in direction has resulted in allegations which are suspect going to trial and innocent young men facing the possibility of a rape conviction, jail time and a drastic change in the course of their lives.
The rape allegations at issue are alcohol-related acquaintance rape claims. Briefers at the mandatory sexual assault awareness briefings are telling audiences that intoxicated women are incapable of consenting to sex. This is simply not true and its a misstatement of the law. Since the audiences at these briefings include those who might make claims of rape in the future, potential court members, convening authorities and legal staff, as well as the commanders and supervisors who make disciplinary decisions, these incorrect briefings affect the entire military justice system by affecting the players in that system.
The law regarding lack of consent due to alcohol consumption is that an intoxicated person is only incapable of consenting if that person is so intoxicated that he/she is unconscious or is incapable of understanding the (sexual) act, its motive, and its possible consequences. (See DA PAM 27-9). Simply drinking alcohol or being in some state of intoxication does not amount to inability to consent.
Stated another way, an intoxicated woman can engage in consensual sex so long as she is able to understand the act, its motive and its consequences. Lack of inhibition or judgment due to alcohol consumption does not equate to lack of ability to consent. A woman who would not have had sex with a particular man if she had been completely sober, and using her sober judgment, has not necessarily been raped if she has sex with that same man when intoxicated. Morning after regrets are not tantamount to rape. A woman who doesnt remember consenting, or who has experienced alcohol-induced memory blackout of portions of a sexual encounter, has not necessarily been raped or assaulted by virtue of her alcohol-induced memory problems. Despite the politically correct messages perpetuated by the press and television talk shows, if a drunk young man and a drunk young woman have sex, the young woman is not automatically a victim and the young man a criminal. The only time that alcohol consumption equates to lack of consent is if the alleged victim is so drunk that he/she meets the definition above which is an extreme state of intoxication rendering the person incompetent.
By briefing military members that intoxicated women cannot consent to sex, false information is purposely being spread. Since the audiences to these briefings include the players in the military justice system, even if some percentage of the audience members know the law is being misstated, they are receiving a message from the top that this is how such scenarios should be viewed and handled in the military justice system. Consequently, one interpretation of this is that a purposeful effort is being made at the very top echelons of the military hierarchy to stack juries and unlawfully influence disciplinary decisions. It is unclear whether the motivation for this is misdirected good faith or an effort to appease the press and prevent any further bad press alleging the military doesnt properly handle rape/sexual assault allegations. Regardless of the motivation, the effect remains the same the fairness of the military justice system is being compromised.
I believe we are fast approaching the time when alcohol-related acquaintance rape allegations cannot fairly be heard in the military justice system, and every such court-martial should include motions to dismiss for court stacking and unlawful command influence. I also believe the numbers of alcohol-related acquaintance rape allegations in the military are heavily influenced by the fact that the military is sending the message to its women members that they bear no personal responsibility for their actions if drinking and that they have been raped or assaulted if they were intoxicated when they engaged in sexual activity. In other words, the tail may be wagging the dog.
False rape allegations do not necessarily mean the alleged victim is purposely lying. Guilt and shame are powerful motivators. If young women are being told they have been raped if they had sex when intoxicated and, at the same time, a young woman is suffering from shame and guilt over her sexual behavior when drunk, she may allow herself to believe she is a rape victim, when she is not.
The explanation above should not be interpreted as my belief that all or most rape allegations are false. That is not my intent. Just a few false rape allegations are far too many they jeopardize innocent lives/futures and they offend true rape allegations and victims. I have attached a story by a young woman who made a false rape allegation they do occur. I hope this helps.
RICHARD V. STEVENS, Esquire
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