Disclaimer: The views expressed in this article are those of the authors and do not necessarily reflect the official policy or positions of the Army, the Department of Defense, the U.S. Government, or Save Our Heroes’ Project.
The United States versus you.
What to understand, do, and avoid if you are falsely accused in the military.
by Major Kit Martin & Michael Conzachi
Save Our Heroes’ Project Board of Directors
This is a synopsis/update from the article/paper “The Secret War” previously posted on the Save Our Heroes Blog and is now linked below, and a copy of this article in PDF form can be download for future reference.
The authors have provided an opinion as to the current state of military justice when allegations have been levied that involve some type of sexual misconduct, based on firsthand experience, hundreds of case reviews that include the review of official court documents and interviews with more than a thousand falsely accused service members and their families. These opinions are further validated by discussions and communications with current and former JAG Corps personnel. Consequently, it can be concluded that these opinions are based on common sense and first-hand realities.
While the authors fully understand that sexual harassment and sexual assault occur in the military, there is a false political narrative that the problem has reached ‘epidemic’ levels. As such, many military justice decision makers, to include prosecutors and various command levels have capitulated to intense congressional pressure to obtain ‘convictions.’
Sometimes this pressure has resulted in military justice abuses at all levels, and many cases that have been referred to court-martial should have never reached the inside of a military courtroom. In many cases, allegations made to civilian authorities, when investigated are dismissed due to lack of evidence or credibility on the part of an accuser, are then fully prosecuted in military proceedings, and convictions are obtained.
This pressure has resulted in abuses and injustices that shock the conscience of most persons including many legal professionals. Some service members who have served in the JAG Corps, have left the military in disgust and have gone on to private practice. While some currently serving in the JAG Corps do a good job, others are lacking in experience and resources and are hamstrung by an unwritten expectation to obtain convictions.
Due process and fundamental fairness in the military justice system has been eviscerated for political expediency when allegations are levied that involve some type of sexual misconduct offense. Once accused you will be flagged, isolated, and protection orders will be served against you. You will be forced into Family Advocacy programs and essentially, your career, at that point will be over, regardless of whether you are later cleared or not.
Your entire past and all your past relationships will then be investigated. Minor or insignificant charges will be filed against you (stacking) in the hopes of securing a conviction for ‘something.’
Here are some key elements you need to understand.
There has been a recent significant uptick in reports of sexual misconduct. Not because there are more instances, but rather that victim’s compensation benefit packages for those who have made false allegations of sexual misconduct have created a system ripe for abuse. There are very few mechanisms in place to determine the validity of some type of sexual misconduct prior to the administration and distribution of benefits.
Transitional compensation packages for civilian military spouses or significant others who make allegations of some type of sexual misconduct can be in the area between $200.000.00 to $300,000.00, distributed over a period of 2-5 years, and depending if there are minor children involved.
One of the most common scenarios involving false allegations of sexual misconduct are those that arise from high conflict divorce proceedings, and in many cases, allegations also involve the alleged victimization of minor children. There are a host of reasons why this occurs such as child custody considerations, financial incentives, and psychological dysfunction.
Another common scenario involves the breakup of a relationship, either long term or short term, and sometimes ‘one-night’ stands that do not develop into a long-term relationship, commonly referred to as ‘regret rape.’ In many instances, alcohol is involved in varying degrees, but one thing is virtually certain, and that is that it is the biased view that the sole responsibility lies with the male, who is presumed guilty if an issue of alcohol impairment is a component of the incident.
In one instance, during a sexual assault training briefing, the female presenter, (most are female) stated that if a perfectly normal and loving husband and wife went out for a nice dinner, shared a glass or two of wine and went home and had sex, that sex was rape since the female consumed alcohol. This is not satire.
What the reader needs to understand is that whoever is making an allegation, there are virtually no repercussions for those making false allegations. It is a virtual certainty that the accuser will benefit financially even if it is determined that the allegations are manufactured.
Another common scenario involving service members who make false allegations of sexual harassment or sexual assault are applications for Veteran’s Administration benefits for PTSD due to Military Sexual Trauma (MST). One common scenario is when service members, almost always female, make an unrestricted report of some type of sexual misconduct where no one is identified. Once an unrestricted report is filed either through military investigators or the Family Advocacy Program, the accuser then applies for V.A. benefits for PTSD due to MST.
These applications are given little scrutiny and are processed almost overnight with an initial disability rating of at least 50%, sometimes 70%, and in some cases 100%. Those applications are placed at the top of the list and servicemembers who have had a traumatic injury in combat scenarios; traumatic brain injury or loss of a limb or other significant injury, are placed below claims of PTSD due to MST.
It is impossible to make a determination of how many false and fraudulent claims have been made as there are no mechanisms in place for making those determinations. Any attempts by advocacy organizations to get the DoD to try and ascertain the level of fraud are usually met with immediate accusations of ‘victim blaming.’ The authors opine that the fraud in the V.A. system involving PTSD claims due to MST are in the hundreds of millions of dollars.
The fraud is so pervasive and bold that there are more than two dozen various websites and Facebook pages that instruct those making false claims, tips or instructions on how to make false claims. Some making false claims are so bold that they have taken to social media to boast about how they defrauded the system, and some civilian military defense attorneys are now using social media investigators to uncover these facts.
In one case that the authors are aware of, a serviceman had his conviction overturned at the appellate stage when social media posts were discovered of the false accuser bragging that she made a false allegation and benefitted financially from that false allegation.
If you believe that you have been falsely accused or under investigation for some type of false sexual misconduct allegation, it is highly recommended that you retain civilian defense counsel IMMEDIATELY. If you have any electronic devices; cell phone, tablet, computer, it is highly recommended that you get these items into the possession of your attorney IMMEDIATELY. If you do not get these items into the possession of your attorney, they will be seized by military law enforcement agents and if you have exculpatory evidence on these devices in the form of emails or text messages, they will either be ignored by military law enforcement agents and prosecutors, or in some instances exculpatory evidence will be compromised or destroyed.
Be advised that there are some unscrupulous attorneys out there who will demand a large retainer fee but who will do very little for your defense. Remember, you are not bound with keeping an attorney that you initially retain, but the important thing is to get legal counsel first.
If you are comfortable with the attorney you have initially retained, then fine, but if there are signs that your retained attorney is not working in your best interests, politely and cordially fire them and retain competent legal counsel. Save Our Heroes’ has compiled a list of competent attorneys who service members and their families have given very high marks and who understand the current state of injustices in the military involving sexual misconduct allegations.
All cases are unique and there can never be a guaranteed outcome.
Also remember that even if you do have exculpatory text messages or emails to or from your false accuser, there is no guarantee that they will be allowed into evidence to demonstrate your innocence.
A very-very common scenario involves a short or long-term relationship, usually boyfriend – girlfriend. When it becomes clear that the relationship is ending or has ended, the female will then make a claim of sexual assault, even though she may have texted or emailed the accused hundreds of times or over the course of months, implying her affection or love, but once she realizes the relationship is over, she will make a false allegation.
Another common scenario involves either a service member or civilian spouse who is trying to avoid a deployment or wishes to be reassigned to a more preferable duty station or location. A sure-fire method is to make a false allegation of sexual misconduct, and an immediate transfer is allowed.
In a recent case, a female false accuser, in the months prior to making a false allegation, took to social media; Facebook, and made dozens of entries and statements proclaiming her hatred for her current duty station, wishing to get out, and after a vigorous legal battle, those social media postings resulted in an acquittal at court martial.
The question that must be asked is why were these social media postings not discovered by investigators or prosecutors BEFORE this case went to court martial? The answer to that was that investigators and JAG prosecutors had no desire to look for or consider exculpatory evidence. This mission and objective was to obtain a conviction. Why didn’t the convening authority consider this before preferring charges?
Denying the entry of exculpatory text messages or other forms of electronic communication is a very-very common tactic of military prosecutors. In one instance involving a male military academy cadet, he received hundreds of text messages from his female academy false accuser after their breakup, wherein she proclaimed her love for him. The entry of those exculpatory text message records into the court martial proceeding were fought, tooth and nail by a JAG prosecutor. Finally, after months of contentious legal wrangling by a retained and competent civilian defense counsel, the text messages were finally allowed in the court martial and the academy cadet was acquitted.
Once accused your command will flag you preventing any positive actions such as promotions, schools, awards, etc. until your case is resolved. They will also force you to attend the Family Advocacy Program (FAP) where biased civilian counselors (usually female) will attempt to portray you in a negative light. Although these counselors will state that any talks are confidential, they are not. They are shared with military prosecutors and current policies and procedures are in place in which the records of the accused are subject to review by prosecutors, while at the same time, any records of the accuser are denied and any attempt by defense counsel to obtain those records are violently fought and denied by prosecutors.
During the investigation process, most service members want to trust their chain of command, they want to prove their innocence and move on with their lives. Most believe that the UCMJ is impartial and if they are honest and cooperate, those facts are no longer true.
What the falsely accused service member must remember is that in a majority of these cases, the truth is irrelevant. Once an allegation is levied, the primary objective is to obtain a conviction.
DON’T SPEAK or MAKE A STATEMENT TO ANYONE, but your lawyer!
Do not talk to your friends or co-workers about the case. Even those buddies who you may have thought you could trust, may have already been contacted by prosecutors or military investigators and pressure may have been exerted upon them to obtain statements from you that can be used against you in a court martial.
One an accusation of sexual misconduct is made, commanders, prosecutors, and investigators will swing into action against you and you will experience the full weight of the government in its objective to obtain a conviction. Investigators start with a “Believe the Victim” investigative approach. Another extremely false narrative that exists, is that women never lie about being raped. In fact, the exact opposite is true, and the authors opine that the rate of false allegations of sexual misconduct in the military have reached ‘pandemic’ levels.
The truth is that no one knows or can say with certainty what the actual false allegation rate is. There have been proposals to try and quantify it, but anyone who suggests it are vilified and there are virtually no legislators who have the courage to propose legislation to try and quantify it.
The false narrative of the sexual assault epidemic in the military has saved the JAG Corps from being downsized. In fact, the JAG Corps now has a huge budget and no expense is spared to obtain the ultimate goal of a conviction.
Here are some other areas to consider.
Polygraph Examinations – Some service members are of the belief that if they consent to taking a polygraph exam, it will demonstrate their innocence. This is not always the case and especially an exam administered by the military. Military polygraph examiners are keen and experienced in extracting damaging information. Usually following a polygraph exam, the examiner will follow up with you to ‘clarify’ information gleaned from the exam. In a great many cases, this follow up questioning is not designed to determine the truth but rather to obtain incriminating information that will be used against you in a potential court marital. It is best to consult with competent legal counsel before consenting to such an exam.
Collateral Charges – During the course of the investigation, a common tactic is that JAG prosecutors will stack a host of charges against you. This is done in the hopes of securing a plea of guilt to one or some of the charges, with the same result, a conviction.
Article 32 Investigation – For a general court martial an assigned investigating officer (IO), usually a JAG lawyer, will hold a mini “trial” and hear all the evidence against you, including testimony to determine probable cause to go forward to a court martial. The Article 32 hearing is also an opportunity for the prosecution to amend their charges to match how the accuser(s) testified.
The Article 32 Hearing used to be a common sense stop gap procedure, today with sexual charges it is just a speed bump. Regardless of what the IO recommends the Convening Authority (CA), or general officer, is going to push your case to trial (court martial). With the public and congressional pressure to secure convictions in sexual misconduct cases, virtually all convening authorities will send cases that have no merit or are lacking in facts and evidence to a court martial.
Sadly, and unfortunately, almost all convening authorities have capitulated to the shrills and screams of some in the legislature and extremely loud and demanding special interests. We are in a state right now were there are virtually no commanders or convening authorities who have the courage to do the right thing and deny sending a frivolous or obviously false case to court martial.
There are countless news stories that reflect this problem, and some have reached the highest levels of military leadership including the highest levels of the JAG Corps. The authors could provide example after example, and besides the pandemic of false allegations in the military, another pandemic exists; Unlawful Command Influence.
Panel versus a Judge alone – A panel is a group of officers (and up to 1/3 enlisted for an enlisted Soldier) that need only a 75% majority to determine guilt, not a unanimous verdict like a civilian trial. Many TDS defense attorneys will push a client to go judge alone, since many judges are former prosecutors, this is an almost sure-fire way to get convicted.
If a panel is selected, those members are selected by the prosecutors from a pool chosen by the convening authority (It doesn’t take a rocket scientist to see the glaring unfairness in this procedure). Panels that are seen as “pro-defense” are usually rotated out quickly after one trial while “pro-government” panels tend to remain for up to a year.
One of the most dangerous scenarios is a lower ranking enlisted service member who has been falsely accused of some type of sexual misconduct and who proceeds to court martial, judge alone; no court martial panel.
However, if you look, each branch will publicize court martial results every month and they are easily found online. Take a look at some of these results, and it doesn’t matter the branch. Each month, we are seeing 2, 3, or more cases in which a lower ranking enlisted service member was acquitted at court martial of some type of sexual misconduct offense, by judge alone or sometimes with a panel.
The question that must be asked is; just how bad was this case that even in this climate of convict by any means necessary, that this service member was acquitted? The answer is that most likely, the convening authority knew full well that the case had no merit, yet sent it to court martial anyway, thereby taking the responsibility off of his or her shoulders and thus escaping any scrutiny from the Senate Armed Services Committee who decides and approves promotions.
The Trial or Court Martial – Contrary to what is portrayed on television, military court martials are different, yet similar in some ways than civilian criminal trials. In military trials, JAG prosecutors wield tremendous weight to learn and discover any defense strategy and have the power to deny defense witnesses. Unlike civilian trials, alleged victims are allowed to be present, if they wish, to view all testimony and evidence. Further complicating the problem is the fact that only in sexual misconduct cases, the alleged victim is afforded a free attorney; a ‘Special Victim Counsel,’ and in most cases, acts as a de-facto third, fourth, or fifth prosecutor and can make objections from the spectator or public seating area of the courtroom.
The authors have spoken to countless individuals, service members, family members and others who have been in attendance at these court martial proceedings, who relay somewhat of a ‘kangaroo court’ atmosphere. In addition to SVP’s yelling objections from the public seating areas of courtrooms, they are seen constantly speaking to and passing notes to and from the actual prosecutors.
Another tactic used in sexual misconduct court martials could be considered witness intimidation or jury tampering yet is ignored by most military judges. During the court martial proceedings and usually occurring when a prominent defense witness is scheduled to testify, or the defendant is scheduled to testify, the local JAG office will hold a so called ‘training day.’
During these times which could be one or more days, the entire JAG office, or at least most of them; instead of performing their duties in their respective offices, will report to the courthouse and sit on the prosecution side of the courtroom. This has the impression, or could give the impression that the defendant is guilty and the case has attracted so much attention that all of these service members found it necessary to witness the proceedings first hand. Panel members witness this and their decisions whether or not to find someone guilty could be affected.
If the accused is found guilty at court martial, they are shackled in front of family and friends and usually shipped off to a local county jail, in general population, pending transportation to the selected military detention facility. Sometimes this may take weeks or months, family and child contacts suffer as well as contact with their legal counsel.
Even if acquitted, the service member will likely be sent to a retention board and most likely be discharged from the military. Either way, being falsely accused is most likely a career ender.
Today, the current military justice system is in a state of turmoil. The vast overwhelming majority of cases involve some type of sexual misconduct. In its zeal and with intense political pressure, the military is trying to portray that they are coming down hard on sexual assault.
The authors agree that there is no place in the military for sexual harassment or assault, but in the current witch-hunt atmosphere, cases that have no merit or those that have no business reaching the front doors of a military courthouse are prosecuted, or should we say, persecuted to the fullest extent of the law, and when the law gets in the way of a conviction, then the law is twisted and distorted is such a way to achieve the same result.
Can we see the tremendous emotional, psychological and financial turmoil this has caused the falsely accused and their families? Personal and professional relationships are destroyed and, in most cases, the falsely accused never recover. This strain has caused families to break apart, families have lost their homes and all of their assets, and in some cases, the falsely accused service members have taken their own lives.
Service members train to endure personal and physical hardships, and sometimes give their lives to protect and maintain a system of the fair administration of justice. In some cases that is true, but in far too many instances lady justice is not blind and one side of the scale has the hand of injustice firmly planted.
JAG Lawyer MAJ Mason Weiss “Defending the Indefensible”
What’s Missing from Sexual Assault Prevention and Response
About the Authors
Major Kit Martin is still a member of the U.S. Army, a Ranger and Apache Helicopter Pilot with several Iraq combat deployments. Kit experienced first-hand the current state of injustice of the military judicial system when he was falsely accused by his bigamist “wife”, a convicted felon. He is currently in the appeals process and serves on the Save Our Heroes Project Board of Directors.
Michael Conzachi is an airborne infantry veteran of the Army’s elite 82 Airborne Division and an honorably retired three-decade Robbery-Homicide Detective in Southern California who has investigated countless high profile and complicated crimes in and around the shadows of ‘Hollywood,’ is a former police academy instructor and current private investigator. He currently serves on the Save Our Heroes Project Board of Directors as the Director of Investigations and serves on the Board of several other like organizations.