Intrusive Grilling in Rape Case Raises Alarm on Military Hearings Article 32 Hearings Permit Questions Not Allowed in Civilian Courts

By Steinhauer, Jennifer | Pittsburgh Post-Gazette (Pittsburgh, PA), September 21, 2013 | Go to article overview

Intrusive Grilling in Rape Case Raises Alarm on Military Hearings Article 32 Hearings Permit Questions Not Allowed in Civilian Courts


Steinhauer, Jennifer, Pittsburgh Post-Gazette (Pittsburgh, PA)


WASHINGTON -- For roughly 30 hours over several days, defense lawyers for three former U.S. 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 and whether she had apologized to another midshipman with whom she had intercourse "for being a ho."

The aggressive tactics on display this month and last are part of a case that has generated intense public scrutiny and raised alarms about what are called Article 32 proceedings, which help determine whether cases are sent to courts-martial. Article 32 hearings permit questions not allowed in civilian courts and can include cross- examinations of witnesses so intense that legal experts say they frighten many victims from coming forward.

"These have become their own trials," said Jonathan Lurie, a professor emeritus of legal history at Rutgers University and the author of two books on military justice. "If this is what Article 32 has come to be, then it is time to either get rid of it or put real restrictions on the conduct during them."

More broadly, the case at the Naval Academy illuminates what critics say is wrong with trying sexual assault cases in the current military justice system, which is under scrutiny in Congress. One bill to be debated this fall, sponsored by Sen. Kirsten E. Gillibrand, D-N.Y., would take the prosecution of sexual assault cases outside a victim's chain of command, with a goal of increasing the number of people who report crimes without fear of retaliation.

In the coming weeks, the military judge who presided over the female midshipman's hearing will send a recommendation to the Naval Academy's superintendent on how the charges should be disposed of. The superintendent, Vice Adm. Michael H. Miller, will ultimately decide whether to move ahead with a court-martial or drop the case.

Increased scrutiny of the problem of sexual assault in the military, combined with more reporting of attacks, has led to a large jump in the number of such cases that have gone to court- martial. The Defense Department says that 68 percent of sexual assault cases were sent to court-martial last year, compared with 30 percent in 2007. …

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