Military’s new sexual-assault rules present uncharted legal ground

06/09/2014 6:18 AM

06/09/2014 6:18 AM

The Navy corpsman said a colleague raped her. Then she told him to pay up or she’d talk.

He paid, but it was a sting. Special agents had him wired.

Now one sailor stands accused of sexual assault while his accuser is the subject of an extortion investigation. Their tangled fates are playing out in a legal arena recently rebuilt by Congress, whose members pushed changes in the sexual assault rules that the military must now figure out how to implement.

“It’s a new animal,” Navy Cmdr. Paul Walker said in court earlier this week.

For two days in a Washington Navy Yard courtroom, Walker oversaw a hearing to determine whether there’s probable cause to think that Hospitalman Kevin McCormick Jr. sexually assaulted the sailor following a night of drinking and dancing. McClatchy’s policy is to not name alleged victims of sexual assault.

McCormick’s case is both typical and extraordinary.

What’s typical is the role of alcohol and the he-said-she-said conflict over events. The accuser says she was raped after she’d blacked out. McCormick says the sex was consensual.

What’s extraordinary is the still-open Naval Criminal Investigative Service probe into claims that the accuser tried to extort $1,000 from McCormick in exchange for her silence.

“I do know there’s a possibility that I could be charged,” the accuser testified Tuesday, “and there’s a possibility that I could not be charged.”

Highlighting the stakes, Capt. Paul LeBlanc _ who oversees Navy defense attorneys, from Great Lakes, Ill., to Bahrain, halfway across the globe _ detailed himself to help with McCormick’s defense.

More broadly, McCormick’s case is noteworthy for its timing. It comes amid considerable public and political attention on the issue of military sexual assault. During fiscal 2013, the Defense Department reported 5,061 sexual assault allegations.

The case also reflects recent changes to military law and hints at potential unintended consequences of the revisions aimed at, as Sen. Claire McCaskill, D-Mo., and others put it, the “epidemic” of military sexual assault. A former sex-crimes prosecutor, McCaskill helped secure passage of a bill to change the military’s sexual-assault policies.

But unlike recent charges against generals, Air Force trainers and U.S. Naval Academy football players, McCormick’s case attracted neither politicians nor public advocates. Instead, the Navy Yard’s wood-paneled courtroom drew only a few uniformed personnel during the two days of hearings.

The setting is known as an Article 32 hearing in military legal parlance, roughly similar to a preliminary hearing in civilian courts. Two years ago, the Navy conducted 99 such hearings into sexual assault allegations. Of those, 66 advanced to trial.

But the hearings are changing. Revisions to Article 32 were included in a big defense bill signed last December. The new rules and new positions make for an uncharted legal landscape for accusers and defendants alike.

The politically popular package got at least some little things wrong. At the Pentagon’s request, the latest Senate-passed defense bill, for fiscal 2015, includes four pages worth of “technical” corrections designed to clean up past errors.

Some other changes from the fiscal 2014 bill are already in place.

Navy Lt. Cmdr. Ann M. Lundwall, a former deputy prosecutor from Clallam County in Washington state, is now serving as a victims’ legal counsel, a newly established post. There are 29 in the Navy, and their full authority remains ambiguous, a cause of occasional frustration.

While representing the accuser in McCormick’s case, Lundwall was confined to the visitors’ gallery. At one point, Walker questioned her “role” and said the policy establishing the victims’ legal counsel position “doesn’t say you have a right to be heard.”

At the same time, additional rights now apply. Lundwall successfully argued for the accuser _ and herself _ to remain in the courtroom during other witnesses’ testimony.

“What part of the (Rules for Courts-Martial) would preclude me from staying?” she asked.

More Article 32 changes will take effect in December. In particular, accusers will be able to opt out of testifying. If they choose to testify, cross-examination will be more limited.

Advocates say the changes will protect accusers from being “re-victimized” by intrusive questions. Certainly, cross-examinations can dig and sting. Navy Lt. Jon T. Taylor, representing McCormick, pressed the accuser about lap-dancing, drug use, her husband’s arrest record, her financial travails and, at one point, her tampon.

“Everyone who’s looked at the Article 32 process agreed that it’s unnecessarily harsh for survivors and that it has become an overly broad tool,” McCaskill declared last year.

But military defense attorneys predict that starting next year, more cases will reach trial because the credibility of the accusers won’t be as exposed at the Article 32 stage. The end result, defense attorneys think, may be weaker prosecutions and more acquittals.

That’s because tough questioning also can expose contradictions, as happened during Taylor’s cross-examination. McCormick’s accuser denied using illegal drugs while in the military. But she had to explain why she’d repeatedly texted friends about obtaining Ecstasy. She also first suggested it was McCormick who proposed paying her, then said it was her idea.

“I am troubled by your answer,” Walker told her at another point. “Why should I believe you?”

Walker, a former aviator and intelligence officer, will assess the woman’s credibility as part of his recommendation on whether to proceed to a court-martial.

McCormick and the accuser first met while training in North Carolina. On May 31, 2013, they arranged to go out dancing in Washington.

The accuser testified that she’d downed two beers and three double shots of vodka and cranberry juice during the six or so hours that she was waiting for McCormick to arrive. Then they had a drink together before driving to the capital’s Ultrabar nightclub.

At the club, she said, she had three more drinks and one may have been drugged. She said she subsequently began feeling unusually emotional and could remember only brief moments from the rest of the night.

Awakening the next morning amid bloody bedsheets, the woman said she’d concluded that she’d been raped. In subsequent conversations with McCormick, who went to NCIS investigators after tape-recording their first call, the woman sought money.

“I’m going to say you raped me, if you don’t comply,” the woman said, according to one tape played at the hearing, adding, “The real question is, how much does your naval career mean to you?”

On Wednesday, the woman testified that she was simply trying to shake up McCormick and make him as upset as she was. She further said she never really expected McCormick to pay, calling it a “breach of contract,” and that she “had no intention of staying silent.”

“This is not a simple, cut-and-dried case,” Walker said in court.

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