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Sex Assaults in the Military: A Tempest in a Teapot

The Law Offices of Haytham Faraj, PLLC

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Allegations of sex assaults in the military have received extraordinary attention in the last few months. Is the extra attention merited? The first question that must be asked is whether sex assaults in the military are statistically disproportionate to the number of assaults in a similar civilian population. Stated another way, does a population of largely 17 to 23 year olds civilians with similar demographic socio-economic and educational characteristics have a statistically different ratio of sex assaults than those being experienced in the military?The Bureau of Justice Statistics publishes data on sex assaults but does not distinguish sex assaults in the military. Yet a number of other variables are used. The numbers being produced by the media and advocacy groups are unscientific and unverified. The crisis is a perceived crisis based on dubious numbers.The fact is that sex assaults in the military receive as much prosecutorial attention as sex assaults among citizens, if not more. Military prosecutors move forward on cases that get no attention from civilian prosecutors. In fact, three of the last six trials I tried were first reported to civilian authorities and turned down by civilian prosecutors because they thought the evidence did not support the allegations or because the complainant lacked credibility.

CASE ONE: ACCUSATION TURNED DOWN BY CIVILIAN AUTHORITIES

In one case, the girl reported a rape after a 2 year sexual relationship with her Marine boyfriend. The rape allegedly occurred the first time they had sex and was because she wanted anal sex but he entered her vagina instead. She reported the alleged rape after he broke up with her and she learned that it was because of another girl. Civilian authorities refused to go forward. The military commander, lacking any moral courage, went forward on the charge.

CASE TWO: CONTROVERSIAL ALLEGATIONS OF RAPE

In another case that has become infamous and a rallying cry for politicians, is a case at Marine Barracks 8th & I, where a female officer alleged she was raped by another officer. In that case evidence revealed that the complainant, Ariana Klay, was cheating on her husband with the officer that she accused of raping her. That evidence is based on her own testimony. The relationship lasted for an 18-month period.Before she made the allegations of rape, evidence revealed that she was caught in bed naked with a junior Marine from the barracks. During a formal investigation into other allegations made by Klay, the female investigator and former prosecutor came close to discovering the truth of the affair and of the romp with the junior Marine— which could have revealed Klay's sexual relationship with the officer she later accused of rape. Shortly before the completion of the investigation, she alleged rape again. This alleged offense happened on the same day that her lover found her naked with a junior Marine.Significant evidence stood in contrast with her claims: also present at the time of the alleged sexual rape was a witness who testified he could hear Klay and her lover in her bedroom laughing and engaged in what sounded like a good time. During examination at trial, Klay contradicted herself under oath and told many lies. She could not explain why she sent my client a nearly naked picture of herself in a bikini on the beach taken by her husband, a week after the alleged rape.In spite of this information, Klay is featured in an HBO movie called The Invisible War. While I cannot comment about the other women in the Invisible War, I think Klay's own testimony reveals the film's lack of objectivity or validity regarding sex assaults in the military, at least with respect to the Klay case.

WHAT DO THESE CASES MEAN FOR MILITARY PROSECUTION?

These two cases are emblematic of the cases prosecuted by the military. They reveal why juries will not convict in such cases. Despite the absurd facts surrounding these allegations, the military prosecuted. Yet politicians and Senator Gillibrand in particular, have gone out of their way to score political points by labeling the military soft on prosecuting sex assaults and accusing it of failing to properly address sex assaults in the ranks. As a result of such accusations, commanders lacking moral courage refer allegations with the most absurd facts to trial.Let me be clear: This is not a defense of the military. It is a defense of who have been falsely accused in a system that rarely provides justice and now burdened by political and media influence to accuse more and obtain more convictions.What Senator Gillibrand fails to consider in her made-up crisis is the extraordinary effort military leaders and the Department of Defense devote to educating and informing members regarding safe workplaces and ensuring members are aware of their rights, responsibilities, duties, and the mechanisms available to report sexual harassment, sexual assaults and even tasteless sexual commentary in the workplace. I dare Congress to find the same level of concern provided to their interns or on college campuses. They will not.The same congressional body that has scored so many political points in the last few months pointing an accusatory crooked finger at the military for allegedly failing to properly handle sex assault cases should open its own closet to allow us a peek at their skeletons. Both the Senate and the House have experienced numerous scandals by members who have engaged in the same misconduct that they now accuse military members or the military in general of ignoring. No one to my memory has been prosecuted.

DEBUNKING THE MYTH OF A MILITARY SEX ASSAULT CRISIS

Sex assaults in the military are not a crisis, have never been a crisis, and cannot become a crisis because the military has the mechanisms to properly address such issues. The notion that victims cannot come forward is not a problem unique to the military; it is a problem inherent to the crime itself. It is quite rare for legitimate victims of sex assaults to come forward.And yes, I dare say legitimate victims because when the so-called victim is not legitimate, she or he is not a victim but a liar. And when a liar comes forward with allegations, that person either seeks to advance an agenda or, like the so-called victims in Invisible War, seeks to win big money through civil lawsuits.

PROSECUTORIAL CRISIS OR POLITICAL AGENDA?

What we must decide is how much of this tempest in a teapot is about genuine victims who, because they have suffered a genuine crime, feel the embarrassment, pain, and suffering associated with the crime and, because of it, resist coming forward lest they be re-victimized. Do real victims come forward to report? Certainly. Are most sex assault reports legitimate? Absolutely. But legitimate reports do not a crisis make.The crisis is in the mind of Senator Gillibrand and her cohorts who seek to advance their political agendas by labeling the military soft on sex assaults. If the military is soft on sex assaults, then we must consider the problem as a society—because the people who populate the military come from the society that Senator Gillibrand and her colleagues represent. The military does not transform people into sexual offenders. As already discussed, military prosecutors and commanders are as virulent and aggressive in prosecuting allegations as their civilian counterparts, often more so because of the increased scrutiny they have been receiving.Before we continue to attack the military for the so-called sex assault crisis and victimize the innocent with false allegations, we must pause, take a real look at the numbers within a similar population of young people, and then decide whether there is a real problem in the military. Once that problem is identified based on real scientific data, we can then turn our attention to the efficacy of the process of prosecuting and the system of review, clemency and parole.I am a former marine with more than 25 years of professional experience. As such, I bring valuable insight to military criminal defense cases in Chicago. Please get in touch with myself or another attorney from my firm, The Law Offices of Haytham Faraj, PLLC, if you have more questions concerning your rights in a military criminal case.

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