- The Washington Times
Thursday, December 11, 2014

The Pentagon is telling investigators that just because a sexual assault accuser gets mixed up on facts does not mean she or he is lying.

Providing different versions of an alleged assault is now a national issue in the debate over a sensational Rolling Stone article on a purported gang rape at the University of Virginia.

The magazine published a detailed account from the accuser, identified as “Jackie.” But Rolling Stone backed off the story after bloggers and reporters found she had provided inconsistent statements.

SEE ALSO: Pentagon: Sexual assault claims drop among military women

The Pentagon’s guidance is prominently contained in its newest report released this month on preventing sexual assaults in the ranks. It says the military has been revamping its training and interviewing techniques so investigators can help accusers overcome trauma and remember how the alleged incident unfolded.

The report comes as President Obama has made stamping out sexual assaults a top military priority. The Pentagon wants more victims to come forward.

The report’s guidance on an accuser’s memory is prominently displayed in a color slide. It tells investigators not to be put off by a disorganized version of events.

“Recent research shows that while victims can and do store details about sexual assault in their memories, trauma often interferes with the encoding and recall of those memories,” the graphic states. “As a result, a victim’s recall about an incident may appear disorganized or incomplete, which is incorrectly interpreted as being deceitful.”

It continues, “Use of alcohol at the time of the incident increases memory problems. Special interviewing techniques, currently being taught to military criminal investigators and attorneys, have been shown to help victims improve their recall of traumatic events.”

The report, by the Pentagon’s Sexual Assault Prevention and Response Office (SAPRO), labels as “myth” that “If a victim has really been sexually assaulted, he or she should be able to recall the event in great detail.”

Critics of the Pentagon’s push to find more victims argue that an inconsistent version of events could be a signal that the accuser is lying.

“The military is being pressured to pursue unjust prosecutions even more than colleges and universities, and the worst of it is yet to come,” said Elaine Donnelly, who directs the Center for Military Readiness.

“The goal should not be solely to help the accuser, who may or may not be a victim,” she added, referring to the Pentagon slide. “The goal should be justice, for both the accuser and the accused. Professionals know how to do this, and they should not be deterred by alleged ‘myths,’ ” she said.

The SAPRO report shows that in one year, 27 percent of sexual assault charges brought against 1,380 personnel ended in no punishment. Most of those were dropped because of “evidence problems,” the report states.

“These percentages, which are roughly the same as in 2013, indicate that the military continues to have what appears to be a problem with unsubstantiated accusations,” Mrs. Donnelly said.

Seventy-three percent of the 1,380 cases were substantiated.

Greg Rinckey is a Washington lawyer who both prosecuted and defended clients while an Army judge advocate. He now represents military clients in a number of sexual misconduct cases. He has seen investigations and charges dropped for lack of evidence.

“From a defense perspective, obviously what we use is recall, and we use that a victim may not be able to articulate events in an organized or complete manner,” he said. “Obviously, from a defense perspective, we use that to show that either the victim is fabricating or maybe was incapacitated in some manner and doesn’t recall everything.”

He said prosecutors would bring in an expert to say trauma interfered with memory processing.

“As a defense attorney, I’m going to try to get my own experts who are going to contradict that,” he said.

Noting the Pentagon’s push to end sexual assaults, he added, “There’s this influence within the military now that there is kind of a sexual witch hunt.”

Charles Gittins, who has defended scores of military defendants, says the Pentagon slide is wrong.

“Both the ‘myth’ and the ‘fact’ set forth in the DOD graphic are overly broad and largely incorrect,” he said. “Each individual case must be investigated thoroughly and individually, taking into consideration all facts that may bear on the credibility of the accused, other witnesses and forensic and other evidence that supports or contradicts the accusation. It is a fact that some women do lie about rape. It remains to be seen whether ‘new’ techniques for questioning complaining witnesses are designed to ferret out the truth or to support the ongoing false narrative that women do not lie about rape.”

Laura Seal, a Pentagon spokeswoman, said, “As the report states, it is the department’s intent to achieve high competence in criminal investigation. Our overall approach to address this issue is based on prevention and an unparalleled commitment to helping victims heal and have a voice in the justice process. Part of that is ensuring that our investigators are appropriately prepared to handle these cases.”

The Pentagon anti-sexual assault bureaucracy is growing.

In unveiling the Pentagon’s new report on Dec. 4, Defense Secretary Chuck Hagel said the department now employs over 1,000 certified response coordinators and has 17,000 volunteers “ready to assist survivors.”

“I’ve directed over 28 new initiatives over the last year to strengthen how we prevent and respond to sexual assault in the military, how we support the survivors of this despicable crime, how we screen, educate and train our people and how we hold accountable not only offenders, but also DOD as an institution, and all of our leaders,” he said.

The pending fiscal 2015 defense budget bill sets up an entirely new institution. It orders the defense secretary to create a panel called the Defense Advisory Committee on Investigation, Prosecution and Defense of Sexual Assault in the Armed Forces. The law says it may contain as many as 20 members, such as federal and state prosecutors, judges, law professors and private attorneys.

Its job will be to continually review cases of sexual misconduct, advise the defense secretary and submit an annual report.

The legislation also requires service secretaries to ensure that fitness reports include an assessment of the officer’s command climate for dealing with sexual assault cases.

Recall is a big issue in the Rolling Stone story about “Jackie,” who says she was gang raped and bloodied by seven males at a university fraternity.

The magazine has backed off its emotion-driving story after “Jackie“‘s version of events either changed or appeared to not have happened.

The SAPRO report, and an accompanying Rand Corp. Internet survey, said that about 20,000 active duty service members said they were the victims of sexual assault last year. It works out to 4.3 percent of women, down from 6.1 percent in the 2012 survey.

The Pentagon defines sexual assault as different types of unwanted sexual contact that includes rape, groping, pinching or attempts at such forced contact.

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