These rules govern how the sexual assault case against Scott AFB commander will proceed
By KELSEY LANDIS | Belleville News-Democrat | Published: June 7, 2018
BELLEVILLE, Ill. (Tribune News Service) — For more than 30 hours over a series of days in August 2013, a young Navy midshipman was forced to testify about her sexual history and the night she said she was raped.
The testimony was part of a preliminary hearing in military court.
Preliminary hearings, known in the military as Article 32 hearings, are similar to preliminary hearings in civilian court, where attorneys present evidence in the case. Based on the facts presented, a judge can decide whether there is enough evidence to proceed with accusations against the defendant.
Such a preliminary hearing has been scheduled for July 6 in the case of Col. John Howard, a former commander at Scott Air Force Base who was ousted after sexual assault allegations surfaced.
Not long after the midshipman's lengthy interrogation, Congress changed the rules for how preliminary hearings in sexual assault cases can be conducted. The change is just one of several measures lawmakers have passed to make it easier for sexual assault victims to seek justice.
Critics of the hearings argued they intimidated alleged victims possibly into not pursuing their accusations at all, according to Retired Navy Capt. Lory Manning, director for Government Operations for Service Women's Action Network. The network, known as SWAN, is an advocacy group for women in the military that shaped the #MeTooMilitary trend on social media.
"There's very high retaliation against women and men who report sex assault when it's somebody in their chain of command," Manning said. "It's very difficult to put your boss on report without coming out with a banged-up record."
Victims might blame themselves for what happened, worrying "they somehow gave a wrong signal," Manning added.
"A lot of women have been trained to blame themselves when someone misbehaves," she said. "Especially if it's not only the boss but the boss of your boss's boss. You just freeze. Then you remember what's happened to so many other people that have brought charges against somebody like that."
The midshipman who faced the hours-long preliminary hearing was at first uncooperative in the 2013 case, according to a Washington Post story from the time. Charges against the two male U.S. Naval Academy football players accused of raping her were dropped, while a judge found a third football player not guilty.
Before Congress changed the rules, preliminary hearings in a military setting allowed the accuser to be grilled for hours, as in the case of the midshipman.
"The purpose has changed radically in the past couple of years," Manning said. "But it (previously) let the accused's defense attorney have out all the evidence and spend as much time questioning witnesses and those involved in the charges as he or she wanted."
After Congress changed the rules in 2014, alleged victims can't be forced to testify. If they are called, they can refuse.
This makes the process less intimidating for alleged victims, possibly paving the way for justice in sexual assault cases where victims might previously have backed off, Manning says.
Another rule passed into law in 2014 eliminated a rule that allowed for the "good soldier defense." Military members could previously use a positive record, rank and decorations to argue they were just too good to do what they were accused of.
Lawmakers continue to work on policy that could help victims feel more confident in speaking out about sexual assault. A new law shaped by Sen. Kirsten Gillibrand, D-New York, would change who decides whether a case goes to court-martial, the term for a judicial court trying members of the armed services.
Under current law, the "convening authority" gets to decide whether a case goes to court-martial after the preliminary hearing. The convening authority is usually the commander of the person who has been accused of a crime — that is, his or her boss.
In the case of the former Scott Air Force Base commander, Commander of the 18th Air Force Lt. Gen. Giovanni Tuck will decide whether Howard will face a court-martial, according to spokesman Capt. Ryan DeCamp.
Gillibrand is advocating for a change in that procedure. The senator plans to submit an amendment to the Military Justice Improvement Act for fiscal year 2019 that would put the decision in the hands of a military prosecutor instead of the chain of command above the accused.
The proposal is part of the National Defense Authorization Act, which is passed annually to authorize Department of Defense spending. The act could be considered by the Senate as soon as this week, Manning said.
Meantime, Congress itself is tossing around a bill to regulate how it handles sexual harassment within its own ranks.
U.S. Rep. Mike Bost, R-Murphysboro, says reform is necessary to ensure sexual harassment victims can speak out without retaliation.
"It doesn't matter whether it's military, it doesn't matter whether it's Congress, doesn't matter whether it's a business down the street or Hollywood," Bost said. "Each person has a right to feel secure in the workplace."