The Military Justice Improvement Act (MJIA) failed in the Senate, but a few anti-male sexual assault provisions survived, by NCFM Adviser Michael Conzachi

March 13, 2014
By
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Senator McCaskill killed the longstanding ‘good soldier defense’ which, as Mr. Conzachi explains, “…could encompass a defendant’s military record of reliability, dependability, professionalism and reputation as an person who could be counted on in war and peacetime.” Now, Congress, has decided that a mere accusation of sexual assault has more veracity.

The Military Justice Improvement Act (MJIA) failed in the Senate, but a few anti-male sexual assault provisions survived

By NCFM Adviser Michael Conzachi

Last Thursday, the Military Justice Improvement Act (MJIA) failed in the Senate on a 55-45 vote, 5 votes shy necessary for passage.

Have no doubts.  Although this legislation did not have enough votes to move on to the House, there will be added attempts to push similar legislation through.  We can count on changes and with members of both parties grandstanding on this issue, some form of military justice changes will eventually be made.

Just minutes before I submitted this article for editing, the Senate voted 97-0 to abolish the century old “good soldier defense” in sexual assault cases in the military.  The new legislation would change the military rules of evidence to prohibit the accused from using good military character as an element of his defense in court-martial proceedings unless it was directly relevant to the alleged crime.  The “good soldier defense” could encompass a defendant’s military record of reliability, dependability, professionalism and reputation as an person who could be counted on in war and peacetime.

http://news.yahoo.com/senate-bill-combat-military-sexual-assaults-184053046–politics.html

mjiaSenator Claire McCaskill, the primary proponent of this change described it as “the ridiculous notion that how well one flies a plane should have anything to do with whether they committed a crime.”   That is true but the Senator missed a fact in that ability is not a part in this change.  It has to do with character, honesty, and integrity.  This proposal will now move to the House.

I suspect that many members of the military, veterans, NCFM & AVFM readers and constitutional advocates contacted their respective legislators and asked them to vote against this bill, not because they are rape apologists, but rather because this bill was so far removed from basic due process and constitutional protections.

That’s not stopping those in the Senate from chipping away at every original proposal in the first draft of the act.  Little by little, these changes will be implemented.  Some command authority has already been removed, and the statute of limitations for sexual assault cases in the military has been eliminated.  We may now see cases coming out of WWII and Korea.

As I have reported on in the past, this legislative proposal was sparked by what many have said is an “epidemic” of sexual assault in the military.  This so called “epidemic,” was based on an anonymous Department of Defense Survey that claims that there were about 26,000 sexual assaults in the military during fiscal year 2012.

One part is true, the survey was in fact anonymous, but it was conducted by the Defense Manpower Data Center (DMDC) a separate part of the Department of Defense.  Their website at the time of the writing of this article indicated that their security certificate was not valid.  Their website does not list any names, contact information or phone numbers.  Why their security certificate is invalid at this time is unknown.  Who are they and what is their function is unknown.

A copy of the 600 page report and survey was obtained through a Freedom of Information Act (FOIA) request and can be found here.  The exact title is 2012 Workplace and Gender Relations, Survey of Active Duty Members, Tabulation of Responses.

There were also several other organizations who took part in the formulation and analysis of the survey including defense contractor SRA International .  Public records show that SRA International was paid about a half million dollars for this survey.  Preliminary information, pending the compliance of an extra FOIA request reveals that SRA International, has spent substantial sums of money on political candidates and lobbying, and has been the recipient of nearly $500 million dollars in defense contracts primarily for conducting “surveys,” since 2002.

One has to suspect that any survey conducted by the U.S. Government and its contractors is driven to arrive at a pre-determined outcome.  The figures of 26,000 cases of sexual assault are an extrapolated figure based on the number of satisfactory responses received; essentially it’s a guess.

What was counted in the figure were real cases of sexual assault, sexual harassment, and what is described as “gender-related behaviors” such as asking someone out on a date who didn’t want to be asked, adjusting yourself; almost anything that is offensive to anyone, primarily women.  This figure included time periods up to one year prior to the service member entering military service.

The real reported figure was about 3,500 cases that included everything; sexual assault, harassment and gender related behaviors resulting in about 300 courts-martial convictions, and another 1,100 sanctions through non judicial punishment (Article 15).

This epidemic that many are repeating ad nausea is fiction.  Any politician, reporter, advocate, or anyone else to infer that our nation’s military is infested with uncontrollable sexual predators should be embarrassed and ashamed of themselves.  I challenge those who make this claim to offer an apology to our military, and I have never seen such a lack of integrity, and a level of ignorance on the part of some of elected leaders who repeat this information as if it were correct.

What has also been repeated are the claims that most victims do not report incidents?  Some of that might be true in that it is usually the case with male victims.  But the claims that 90% of victims do not report it are utterly ridiculous and there is no way to confirm that figure.  As they survey indicates, some alleged victims were not aware or did not consider that certain acts were violations, so they didn’t report them.

If you go onto the websites of every military installation, there are large tabs and links that go right to the offices that handle cases of sexual assault and harassment.  In fact, the survey reflects that 96% of all military members are fully aware of the resources available to victims of sexual assault and harassment, and have had specialized training sessions and briefings on sexual assault and harassment.

Do sexual assaults, harassment, and offensive behavior occur in the military?  Of course they do and no one is going to deny that.  Do they happen in such great numbers that they must be classified as an “epidemic?”  Absolutely not, nor does this require sweeping legislative reform that discriminates and is constitutionally defective.  Should we convict violators and rid the military of sexual predators?  Absolutely!  Should it be done in a way that violates constitutional protections and due process?  Absolutely not!

If Gillibrand and her angry, hysterical, and ravenous supporters get their way, an allegation alone, void of any other verifying information will start a process that will be disastrous for any military member.

During WWII, General George Patton made a statement that rings true to this day.  He commented that some politicians would wipe their ass with the American flag if would get them a few more votes.  Do we see a pattern here?

There were a number of provisions in the MJIA however the emphasis was focused on the sexual assault part.  Other serious crimes were covered in the proposed legislation and there were a number of amendments.  The reader’s digest version and amendments would codify the following changes with respect to allegations of sexual assault, sexual harassment, and “gender-related behaviors.”  Some of these changes have already been implemented in unrelated legislation.

  • Expansion of definitions of sexual assault and harassment.
  • Elimination of the statute of limitations for sexual assault cases.
  • Criminalization of “gender-related behaviors.”
  • Elimination of command authority in sexual assault & harassment cases.
  • Elimination of commander’s ability to overturn a wrongful conviction.
  • Eliminate accused’s ability to challenge wrongful or dishonorable discharges, or loss of benefits.
  • Eliminate accused’s ability to offer positive character references or superior service records in any proceeding involving sexual assault or harassment.
  • Virtual elimination of cross-examination of alleged victims of sexual assault in probable cause (Article 32) hearings.
  • Immediate referral of alleged offenders to courts-martial by severe restrictions in probable cause determination hearings.
  • Provide sanctions for uninvolved third parties such as non-commissioned officers and commissioned officers in the chain of command.
  • Provide expanded and added advocates for sexual assault victims above and beyond what is provided now such as medical and counseling personnel, advocates of various types including religious counselors and advocates, and assigning personal attorneys to alleged victims.
  • NO wording, provisions or sanctions for false allegations, false accusers, or anyone who provides false information, who may or may not be alleged victims of sexual assault or harassment.

What Gillibrand, her co-sponsors and supporters are trying to carry out is to expand what is an offense, remove command oversight of any type, send sexual assault, harassment and offensive behavior cases directly to courts-martial, to limit an accused’s ability to offer an affirmative defense, to place evidentiary restrictions on the accused, to severely limit and in some cases end the appeals process and discharge status, and to give sanctions for uninvolved third parties regardless if they had knowledge of the incident or not.

During all of Gillibrand’s and her cohorts comments, grandstanding and parading of victims, she and the others have not uttered a syllable, word, or has given any attention or voice to those who have been falsely accused, nor the problems they have faced or will face in the future.

Within the past week, two high-profile Army cases are in the news.  At Fort Bragg NC, Brigadier General Jeffrey Sinclair is being court martialed for sex related offenses involving a subordinate.  What gets missing from most mainstream news media outlets is that his accuser claims that the General forced her into sex acts and threatened to kill her family, but even after those allegedly occurred, his accuser continued to send sex filled text messages to him.  Does that sound like someone whose credibility is in question?  To top that off, the judge in the case has ruled that there was undue command influence in the case, as evidence was kept from the defense until the last-minute.

Also in the last week the Army’s top sexual assault prosecutor, Lieutenant Colonel Joseph Morse was relieved of duty as a result of allegations of grouping by a female JAG attorney which occurred more than two years ago.  Given all of the resources of reporting, the confidentiality, the advocates, the investigative resources, and what should be known to the female JAG attorney; why did she wait two years before reporting the incident?  And why was this announced the same day that the Senate was voting on the MJIA?  More than likely, LTC Morse’s career in the Army is over, and his employment prospects in the public sector will be affected.

Is everyone starting to see the pattern of inflaming the public with the shrill of an “epidemic,” salacious allegations and inaccurate reporting?

Like any other ill-conceived legislation, certain types of legislation morph from their original legislative intent.  If this legislation passes in any similar form, an unsubstantiated allegation of any type will result in sanction, discharge, and/or conviction.

A life altering and lifetime event for those caught up in the hysteria of an invented and manufactured “epidemic.”

There is no arguing that incidents occur and problems arise in the chain of command, but to turn portions of the Uniform Code of Military Justice into a college kangaroo court to satisfy the delusional ranting’s of special interest groups and political grandstanding will further decimate the morale and effectiveness of the military; a process that has been in steady decline in the past 5+ years.

The readers are urged to contact their respective political representatives and ask them to vote no on the Military Justice Improvement Act or any version of the act that is sure to be re-introduced at a later time.  We must deal with facts, logic and common sense solutions, and so must our legislators.  As this affects our national security, we cannot rely on misinformation, contrived, manufactured, and inaccurate statistical data, hysteria, and political grandstanding.

Please refer your representatives to this article and others that have been posted for those facts.

mjia

The MJIA is fundamentally flawed and protects no one from anything.

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7 Responses to The Military Justice Improvement Act (MJIA) failed in the Senate, but a few anti-male sexual assault provisions survived, by NCFM Adviser Michael Conzachi

  1. Michael Conzachi on March 14, 2014 at 7:55 AM

    Brian,

    I am glad you responded and I sympathize with your situation. Unfortunately, it is very difficult to get male sexual assault victims to come forward and share their stories, and your courage for sharing your story is commendable. You make some very good points and I hope that I can address them properly, as I attempt to be as accurate as possible.

    You mentioned that there are already provisions in the UCMJ for making false allegations, but with all of the military members, mostly men who have contacted NCFM who have been falsely accused of sexual assault or harassment, we have not heard of one story where their false accuser was held accountable. The FBI statistics only reveal those cases of false allegations where it has been proved it was false by an admission by the alleged victim or through clear evidence that it was false. What is left out are those cases where there is NO evidence to indicate that a crime was committed, but can’t get a victim to admit such or rule it out any other way. Those cases are listed as “unfounded” and are not counted in the “false” category.

    In all of the hearings and the articles that have been published, have you seen anything about the victims of false allegations; the male victims of sexual assault? The NCFM and other organizations get more calls and emails from those falsely accused than we have time to address. In all of the parading of victims, did you ever see a male victim testify before a Senate committee? The answer to both of those questions is no.

    We fully understand that there are many male victims of sexual assault in the military, but our lengthy history of dealing with legislation of this type is that it is primarily directed at male offenders and female victims. Just as our nation’s domestic violence laws are based on the “Duluth Model,” meaning male offenders, female victims only, this is no different.

    The objection of the good soldier defense has nothing to do with ability or how many medals one has received but rather attributes of character, honesty and integrity. Just last week, the Army’s top JAG for sexual assault was relieved of duty on a three year old allegation of “groping” and the announcement was made on the same day that the Senate voted on the MJIA. Coincidence?

    We don’t have all of the solutions, but what we oppose is the vast restructuring of the UCMJ, that is clear with many years of experience appears to be directed systematically towards males. Any kind of sexual assault against females or males is deplorable and no one supports that. It is a very touchy political issue that is associated with and sympathizes with female victims only, just as it does in the civilian courts.

    Sexual assault is the only crime where it seems permissible and authorized by law to commit violations of due process and constitutional protections in order to obtain convictions, but virtually only with female victims.

    You’re right, it should be the same, and there should be no retaliation, and those things need to be fixed. Some things go in the right direction and others do not. When all sides are heard equally, proper decisions are made. I wish it were equal but the harsh reality is that it is not.

    You had a question as to what is NCFM doing to advocate for the male victims of sexual assault? The answer is as much as we can but the bigger question would be what are you doing to advocate for yourself?

    • Brian Lewis on March 20, 2014 at 3:23 PM

      I have to admit I stepped back from this thread for a week. Self-care is very important.

      You asked if I have ever seen a male survivor of military sexual trauma testify before a Senate committee. You said the answer was no. I regret to inform you that answer is incorrect. I have the privilege of being the first male survivor of MST to testify before Congress at the Senate Armed Services Committee on March 13, 2013. I also submitted a written statement to another Senate Armed Services Committee hearing regarding MST held on February 26, 2014. I also was the first male victim of MST to testify before the House Veterans Affairs Committee on July 19, 2013.

      I can only tell you what my predator did to get off the hook and what I have heard from other survivors, both male and female. Yes, he trotted out his family the same as Brigadier General Sinclair. Yes, my predator had multiple victims aboard the same command.

      I know about the difference between false and unfounded allegations in the UCR. You mentioned that NCFM had heard from men who have not had their false accuser held responsible. If so, why isn’t that a reason for you to support removing cases from the commander’s hands? Justice deserves to be done either way, right? If commanding officers aren’t providing justice for either the alleged victim or the alleged perpetrator, why not support the effort to remove the conflict of interest from the military justice system?

      You also mentioned the good soldier defense and how it has to do with attributes of character, honesty, and integrity. One of the ways those attributes are proven in the military is through the awards system. A perpetrator showing up at a court-martial or even an Article 32 hearing with a chest full of awards that can be introduced into evidence through their service record entries and officers who will testify that Sergeant Schmuckatelli is a stand-up guy (as you alluded to in your answer) will have a different experience than the poor guy a couple of months out of boot with a clean chest.

      As a survivor, what I want is a place to report that isn’t able to retaliate against me by filing charges against me or discharging me for any number of reasons. I feel the best way to get that is through an independent prosecutor.

      Yes, I think I have done a lot to advocate for myself. I also try to advocate for other survivors who need to have their voices heard. However, it is nice to have some organizations to partner with. Thank you for having this conversation with me.

  2. ted on March 13, 2014 at 9:51 PM

    brian it is quite simple what they are doing for male survivors … nothing… they treat us like shit, which is about what this article is worth.

    • Michael Conzachi on March 14, 2014 at 8:08 AM

      Ted,

      Apparently you have not read many articles from this site or others. The reality is that there has been a tremendous amount of work done advocating for male sexual assault victims, but there are limits to what any organization can do. Unfortunately we do not receive millions in federal grant funds like women’s groups do, nor do we get support from many politicians or the mainstream news media.

      Men’s Human Rights organizations are constantly vilified and labeled in such ways that would be condemned if the roles were reversed. Vilification and demonization of males is inherently bred in our society and all you have to look at are commercials that you regularly see on TV. There is too much money at stake through federal grant funds and all of the related agencies who are part of the process, for anyone to upset that apple cart.

      I will pose the same question to you as I posed to Brian; what have you done to advocate for yourself?

  3. Brian Lewis on March 13, 2014 at 2:49 PM

    I don’t even know how to respond to this article. I’m going to give it my best shot though.

    I am a male survivor of rape in the military. I really want to know if you ever consulted any other male survivors before writing this article? If you did, I can’t imagine this article would have been written.

    I can’t disagree with you enough about the “good soldier defense.” While this type of information comes in during civilian trials, it does so at the sentencing phase. The sentencing phase is after guilt or innocence has been established. There is a good reason for this. In the Advisory Committee notes to Federal Rule of Evidence 404, it is stated that ““Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened.” This is exactly what happens in the military. A rapist may have a wife and kids, several Good Conduct Medals, and is permitted to wave those in front of everyone and hope that it is enough to persuade the Commanding Officer not to move forward with prosecution or to confuse the issue in front of a court-martial. This is wrong and should be reformed to fall into line with established federal court practice.

    Let’s discuss false allegations. First, let’s keep in mind that the FBI consistently places false allegations at about 2-8 percent of all reports in the civilian world. Second, false reporting is covered under Article 107, UCMJ. That is an additional disincentive to file correct report. If commanders are not prosecuting false reporting, doesn’t that give even more support to the argument that commanding officers are unable to fairly adjudicate crimes occurring in their command?

    You mentioned all the avenues of reporting. Guess where all those avenues lead back to? The commanding officer. In a lot of cases the commanding officer of both the victim and the accused. This breeds a conflict of interest. A Commanding Officer cannot effectively look out for the various interests of both the accused and the victim.

    You also mentioned that 96 percent of members are fully aware of the resources for reporting. Have you considered why they don’t? Retaliation would be a good answer. I lost my career after reporting the rape. I know quite a few survivors who had the same thing happen to them as well.

    You mentioned the statute of limitations being removed. That is prospective. That means it will only apply going forward. You will not see cases “coming out of WWII and Korea” as you put it.

    I thought this organization was about looking out for men. What about the male victims who make up a majority of the estimated sexual assaults in the military? What are you doing to support them? What are you doing to advocate for them?

    • Mrs Sue Gardiner on July 28, 2017 at 3:40 PM

      I know for a fact that there are several inmates in the Ft Leavenworth military prison convicted of sexual misconduct that are innocent. What have we done to cause this to happen? We must fix it.

      • NCFM on August 4, 2017 at 3:59 PM

        Ignored the plight of men while allowing a very small but powerful group of Supremist Feminists (men, women and now 52 other categories not counting “gender-fluidity”) to demonize heterosexual males…not complicated, but very disgusting.

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