General courts-martial for sexual assault: How do they work?

By Maj. Derek Rowe, 366th Fighter Wing Legal Office / Published April 28, 2015

MOUNTAIN HOME AIR FORCE BASE, Idaho (AFNS) -- Support for military sexual assault victims and the number of reported offenses have increased in recent years, resulting in more investigations and courts-martial involving sexual assault charges. This article describes the general court-martial process and some of the unique aspects with regards to sexual assault cases.

One distinct aspect of a sexual assault court-martial is that victims of sexual assault are eligible for a Special Victim's Counsel to represent their interests. All service members and certain categories of adult dependents who report being victims of sexual assault are eligible for an SVC.

Since implementation of the program in 2013, an SVC is an active-duty military attorney with the specific mission to represent a victim's interests during investigation and court-martial proceedings. An SVC has the ability to speak on behalf of the victim during certain parts of the trial. There are 34 SVCs in the Air Force.

For most matters during the court-martial process, a sexual assault victim's interests are aligned with the government, or prosecution, and the victim is considered a government witness -- but the victim's interest may not always align with the government. For example, during investigation and before trial, both the defense and government attorneys will naturally want to interview the victim several times each, in preparation for trial.

The SVC will be present for these interviews and may advise the victim to limit participation due to the victim's emotional state or perhaps due to collateral misconduct the victim was involved in, such as underage drinking or another offense. In courts-martial for other types of offenses, government witnesses do not have this level of flexibility when it comes to participating in pretrial interviews.

Before either the judge or jury begins to consider evidence, there may be one or more motions hearings. This highlights another aspect of sexual assault courts-martial, as there is usually a Military Rule of Evidence 412 motion. MRE 412 is a rule prohibiting either side from presenting evidence of a victim's past sexual behavior and sexual predisposition.

For example, if the charged offense is rape and the victim had sexual relations with a different partner two nights before the rape, the defense might want to present evidence of that sexual relationship for various reasons. The general rule would prohibit presenting that evidence, but there are exceptions to this rule and the MRE 412 hearing will determine whether any such evidence will be allowed. This hearing typically happens the day before trial and is closed to the public because of the private nature of the matters presented. The SVC argues on behalf of the victim at the hearing.

The SVC is focused on protecting the rights of victims of sexual assault and will typically travel to wherever the victim is in order to argue motions and be present during all phases of trial. SVCs are experts in these areas and provide a great service for victims of sexual assault while guiding them through what can be a difficult and intimidating process.

After the motions are argued and decided, the court panel, or jury in the civilian sector, is selected if the accused has chosen a jury trial. It is the accused's choice whether to be tried by judge or jury. If a jury is chosen, the selection process is very different from the selection process in the civilian sector. In the military, commanders are asked to forward the names of their best personnel to the court-martial convening authority.

For general courts-martial at Mountain Home AFB, the General Courts-Martial Convening Authority is the12th Air Force commander. The GCMCA is required by law to pick jurors based on their age, education, training, length of service and judicial temperament. In contrast, in the civilian sector, jurors are often selected randomly based on their address. If the accused chooses to have a jury, a general court-martial requires at least five jury members. Once a fair and impartial jury is selected, opening arguments, presentation of evidence and deliberations follow.

If the accused is found guilty, the last phase of the court involves sentencing. In the military, the sentencing phase immediately follows the guilt or findings phase. The finder of fact, either judge or jury, is presented with evidence in aggravation by the government and evidence in mitigation by the defense, to decide an appropriate sentence.

A general court-martial may hand down any sentence including confinement for life, total forfeiture of pay, dishonorable discharge and death. In sexual assault cases, the victim will usually testify again, but this time the testimony concerns the impact of the crime on the victim's life.

Many civilian courts will have 30 days or more between the guilt phase and sentencing phase, which allows for a pre-sentence investigation to be conducted. In contrast, all individuals involved in a general court-martial will know the verdict and sentence, if any, immediately after the court.