This is terrible

Lawrence E. Rafferty writes about the appalling line of questioning that a woman received at a military judicial proceeding over allegations of rape. He quotes from a report in the New York Times:

For roughly 30 hours over several days, defense lawyers for three former United States Naval Academy football players grilled a female midshipman about her sexual habits. In a public hearing, they asked the woman, who has accused the three athletes of raping her, whether she wore a bra, how wide she opened her mouth during oral sex and whether she had apologized to another midshipman with whom she had intercourse “for being a ho.”

He says that the problem is that these kinds of hearings, known as Article 32 proceedings that determine if the matter should proceed to court martial, allow lines of questioning that would be forbidden in a normal court of law. And the problems do not end there.

In the case of the Naval Academy student noted above, the military judge who is handling the charges will not make the decision whether a court-martial should be held. The judge forwards the case to the superintendent of the Naval Academy and Vice Admiral Michael H. Miller will make what many would consider a judicial decision and decide if the case should be tried.

Does it make sense that a third-party, who in many cases is the commanding officer of the parties involved and who is not involved in the Article 32 proceedings, can decide if defendants are brought to trial? Would it be a concern to female victims that the vast majority of the commanding or supervising officers who are making these decision, are men?

A Washington Post editorial described that what happened appalled many observers:

During more than 25 hours on the stand, The Post’s Melinda Henneberger and Annys Shin reported, the woman was grilled about whether she was wearing underwear on the night of the alleged assaults, how she danced, her technique for oral sex and other matters not relevant to the claim of rape.

Defendants have the constitutional right to confront their accusers; their attorneys are obligated to challenge and present the most vigorous defense. But the extent and nature of the questioning went “beyond the pale,” as Eugene R. Fidell, scholar of military justice at Yale Law School, put it on WAMU-FM. It was an assessment shared by several other experts in military law we consulted.

The current Manual for Courts-Martial has a rule of evidence aimed at protecting rape victims from degrading questions. But according to a Defense Department official, the rules don’t indicate what procedures should be used to apply them at Article 32 hearings, and practice varies widely. The fact that such abusive questioning would be permitted in a case as high-profile as one involving Naval Academy athletes makes one wonder — and shudder — at what happens in the conference rooms where no reporters are seated and no attention paid.

Is it any wonder that women in the military suffer from so many instances of ‘unwanted sexual contact’ (26,000 last year, up from 19,000 just two years earlier) and that they might well be reluctant to report rape and other forms of sexual abuse if this is the kind of treatment that they will have to endure?

Unfortunately the military is not an outlier in the way it treats women degradingly if they should have the temerity to complain about sexual assault. It is embedded in a wider culture that shares some of those same deplorable characteristics. There is something about hierarchical, authoritarian, male-dominated structures (military, football teams, Catholic church, ultra-Orthodox Jewish sects, Islamic extremist groups) that seem to encourage people in them to think that they have greater license to behave in these kinds of ways.


  1. left0ver1under says

    The US military is a lot like the mafia. Concepts like “loyalty” and “honour” for those those at the bottom to show those at the top. It does not apply in the other direction.

    The only concern the “brass” have is protecting their careers, not those under their command. And if assaulting women a second time is the way to do it, they will.

  2. tuibguy says

    I am sure that the point of this is to discourage the complainant from pursuing the case, to encourage the victim to just say “Fuck it” and drop the charges.

  3. hyphenman says

    Good morning Mano,

    In an adversarial system of justice, such as we have, I’m not sure how we fix this.

    The accused has a right (both under our Constitution and the Uniform Code of Military Justice) to confront the accuser. It seems to me that one challenge is that our continued puritanical attitude toward sex is perhaps the most serious barrier. If the accuser were able to speak of sex with the same ease and candor as they might speak of other aspects of their lives, that would greatly diminish the power of questions such as you cite.

    As a society, we need to address and seek reasonable pathways to address our present disparity.

    The topic would have been a good one for Socrates Cafe.

    Do all you can to make today a good day,

    Have Coffee Will Write

  4. Mano Singham says

    It is question of establishing rules that allow the accused to confront the accuser while not allowing questioning that serves little more than to humiliate either. If I am correct, the UCMJ has some rules but the Article 32 hearings are much more under the discretion of the judge as to what is allowed and this judge seems to have been far too lax.

  5. hyphenman says


    Perhaps it might be instructive to consider how judges in British (and Sri Lankan?) courts involve themselves in the questioning of witnesses much more directly than judges in American courts typically do.

    The questions seem to me to fit into the realm of Justice Potter Stewart’s assessment of pornography. I can clearly tell you when a question is improper to my mind, but I can’t give you a legal definition that would preclude the question without also ruling out questions that would be proper.

    Might judges pre-approve questions somehow?


  6. Mano Singham says

    I don’t think judges can (or should) pre-approve questions but they should be able to rule that a question is prejudicial or not relevant and tell the witness that they don’t have to answer, and even reprimand the lawyer if the practice is egregious.

  7. hyphenman says


    If judges start holding lawyers in contempt, and locking them up in addition to imposing hefty fines, that would go a long way to enforcing courtroom decorum and preventing this type of reprehensible behavior.

    I found this discussion on the case to be instructive.



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