ON GOING AWOL BECAUSE OF RAPE AND SEXUAL HARASSMENT

This is a tough case.  Spc. Suzanne Swift, aged 22, has been charged for going AWOL when her unit was deployed in 2005.  She states that during her first deployment, she was routinely subject to derogatory sexual remarks by her superiors and was raped twice by her commanding officers.  Although she confided in a friend who was a non-commissioned officer and in her mother, she never brought a formal complaint because she feared retaliation.  When the time came for her second deployment, Swift was packed and ready to go but realized within hours of her departure that she just could not bring herself to undergo a similar experience again.  Her mother contacted a lawyer in an effort to negotiate a discharge.

I hate to say it, but I don't think that the military has any choice but to bring some sort of disciplinary action against Swift.  Not showing up , especially at the time of deployment, especially during wartime, has got to be something that is considered unacceptable. 

That having been said, even in civilian circles, there are many reasons that victims do not report offenses right away.  Fear of retaliation is a very good reason, especially when you are in a military situation in which your superiors have enormous control over you, often in life or death situations.   And, while I am not familiar with military life, I know the military is notorious for not doing enough in response to complaints of sexual assault. 

So there is a real conflict here.  On the one hand, even though I understand completely the probable reasons that Swift acted the way she did, I am not sure what kind of exception the military can carve out for this situation.  The time for Swift to try to negotiate a discharge was before her deployment.  On the other hand, it is not fair for the military to expect a soldier to return to a situation in which the military itself (i.e. her superiors) abused her sexually--   especially if the reporting system and responses by the military to reporting are flawed. (I have no idea if the latter is true or not, but it is an extremely relevant consideration.)

Where I come down on it is this:  Swift should be charged or disciplined in some manner, but the extenuating circumstances should be heavily taken into account.  I can't speak to what I would do if I were the trier of fact in the case, because I would want to know all the circumstances in great detail.  But it seems to me that the ideal solution may be "a slap on the wrists."  There should be some acknowledgment that Swift did not do what she should have done as a soldier in this situation.  On the other hand, there are enormous mitigating circumstances here that should be taken into account.   I vote for some sort of administrative reprimand. I also hope that the military authorities are properly addressing her allegations of abuse.  And I damn well wish they would get their act together so this kind of thing stops happening.  Ultimately, there is a far greater threat to military effectiveness by commanders abusing those under their command than there is from one 22 year old soldier not showing up. 

Comments

[David Duff]

Sundry points arising from your post:

1: You seem to be suggesting that one legal case should be influenced by information concerning another *potentially* criminal act that has never been tested before judge and jury. I'm no lawyer but surely the judge in the AWOL case would have to rule out unsubstantiated 'evidence'.

2: Anyway, in the giving of such evidence, presumably, a man or men will have to be named and, again presumably, they will have to face charges for rape. The fact that a judge has already accepted their guilt in the AWOL case would surely be prejudicial to them.

3: Wouldn't the sensible way out be to try the rape case first and the AWOL case last.

I suspect that if you don't, some of your commenters will, claim that such a rape charge will stand little chance of success in an army court. They may well be right but that is a different problem from the one of dealing with Spc. Swift properly.

I should add, lest you suspect me of being mischievous (again!) that I'm much more interested in the legalities than the sexual politics of this case. Sorry, but I'm an absolute sucker for those great American legal blockbuster books that pose wonderfully tricky legal arguments.

[The Happy Feminist]

Actually your comment is surprisingly sober and unmischievous. Here's my take (and I don't know a damn thing about a military law, but I do know about U.S. criminal law generally.)

1) Her testimony, by itself, may be enough to establish that the rapes and the harassment occurred. Her testimony is in fact "evidence" that may be sufficient by themselves to prove her claims. That is not to say that her testimony should be accepted uncritically. I have written here about how to assess witness testimony: http://happyfeminist.typepad.com/happyfeminist/2005/11/crying_rape_doe.html

2) Trying the alleged rapists first may be more efficient if they are found guilty beyond a reasonable doubt. However, if they are NOT found guilty, the judge or jury should still consider Swift's claims in assessing whether she is entitled to a finding of mitigating circumstances. I don't know what the standard is for establishing mitigation when you are a defendant in a military tribunal, but I bet it's less than "beyond a reasonable doubt." Therefore, she should have an opportunity to meet that lesser standard.

[Richard]

Swift supporters have a website here ---> http://suzanneswift.org/index.html which accepts as fact that the harrassment and rape occurred. Looks as if a lot of left leaning political groups want a piece of her now, too. Just what she needs.

These things usually follow patterns. No other women in her unit complaining of anything similar? Investigators have had the case since June, and still nothing.

[The Happy Feminist]

The Washington Post in the article linked above has a source:

Another woman who was in Swift's unit, who did not want to be identified for fear of retribution, said that the same sergeant also propositioned her during her tour in Iraq. She said she had no doubt it had happened to Swift.

I don't find it particularly disturbing that Swift's friends and family accept her account. I think that's appropriate. Also, don't forget that SHE is presumed innocent as well.

[David Duff]

I'm not being a barrack-room lawyer here but:

"Her testimony, by itself, may be enough to establish that the rapes and the harassment occurred. Her testimony is in fact "evidence" that may be sufficient by themselves to prove her claims."

Perhaps you wrote that in haste and it came out wrong because you surely cannot be suggesting that her testimony alone ("by itself") is sufficient to a) establish that a crime occurred and b) is also sufficient to convict?

Also, I cannot follow the logic in defendant 'A' pleading mitigation in one court on the grounds of 'x', when 'x' was disbelieved in another, previous, court.

You will note that I am trying hard to keep the sexual politics out of this.

[The Happy Feminist]

Yes. Under American law, the testimony of an eyewitness is sufficient (if it is credible beyond a reasonable doubt) to establish that someone committed a crime, assuming that the eyewitness witnessed all of the elements of the crime. The victim of the crime qualifies as an eyewitness. This is true whether we are talking about a robbery, a punch in the nose, or a rape.

Also, I cannot follow the logic in defendant 'A' pleading mitigation in one court on the grounds of 'x', when 'x' was disbelieved in another, previous, court.

If the alleged rapists are acquitted of rape, that does not mean that a judge or jury disbelieved that they were guilty. An acquittal only means that the judge or jury had a "reasonable doubt" as to whether the alleged rapist was guilty. Many juries acquit even when they believe a defendant is "probably" guilty because "probably guilty" isn't good enough.

When it comes to establishing mitigation of Swift's offense, she probably doesn't need to establish that the rapes happened "beyond a reasonable doubt." Depending she may only need to establish that the rapes happened "more probably than not." She should have a chance to do that, even if the prosecution couldn't meet the heavier standard of "beyond a reasonable doubt."

Another point, she is not represented in a charge of rape agains the alleged rapists. That charge is not brought by the victim but by the government. She should have a chance to in her own defense to convince the court that facts in mitigation of her her offense really do exist.

[The Happy Feminist]

I should note that these aren't special rules for female victims of sex offenses. The law I describe is the same regardless of whether it involves a sex offense. It would be the same if we were talking about a male soldier who went AWOL because his commanding officer had been roughing him up.

Sorry for the typos above. I'm in a rush!

[David Duff]

I am totally gob-smacked (Brit argot meaning 'amazed'!)

If person 'A' accuses 'B' of an offence and 'B' pleads 'not guilty' and either denies it or stands on his/her right of silence, then he/she can be convicted on *one* witness's testimony with no other evidence at all?

And surely "not guilty" means just that. It's not up to third parties in a later court action to finesse a court's findings and to suppose that they can say, with any degree of certainty, "Ah, yes, but really 'B' was guilty, it's just that the Crown couldn't quite prove it". That would be outrageous!

Don't get me wrong, I'm not arguing with you because I just don't have the expertise but I am truly surprised at what you write.

http://www.jesus-is-savior.com/False%20Religions/Illuminati/illuminati_exposed.htm

apparently now the Jews are out to get Patriarch...

[Lynn Gazis-Sax]

If person 'A' accuses 'B' of an offence and 'B' pleads 'not guilty' and either denies it or stands on his/her right of silence, then he/she can be convicted on *one* witness's testimony with no other evidence at all?

That's *one* witness as opposed to requiring more than one witness to the actual act, right HF? Presumably the defense and prosecution would also be presenting additional evidence to either corroborate or challenge the plausibility of the one witness's story.

And surely "not guilty" means just that.

But David Duff, we don't have a "not proven" verdict in the US. "Not guilty" includes both the case where the jury considers the defendant not to be guilty and the case where the jury considers the case not to be proven.

O.J. Simpson was "not guilty" in a criminal trial, but Nicole Brown Simpson's family still managed to collect damages from him in a civil case. And failed to get custody of his kids away from him in another court case (evidently whoever was deciding the custody of the children was less convinced of the evidence of his guilt than whoever was awarding damages). Only the criminal trial required proof "beyond a reasonable doubt."

[The Happy Feminist]

It is entirely possible to prove a rape charge (or any other criminal charge) based on the testimony of just the victim. In every case, I have prosecuted I have introduced SOME other evidence, even if it's just someone saying that the victim appeared distraught immediately after the alleged rape. But usually the corroboration you have of the victim's testimony is pretty tangential. The victims is the whole ball of wax.

[Lynn Gazis-Sax]

In every case, I have prosecuted I have introduced SOME other evidence, even if it's just someone saying that the victim appeared distraught immediately after the alleged rape.

That's kind of what I was thinking of - that I'd expect the defense attorney to be making some sort of challenge to the victim's credibility, if the victim's the main evidence, and so there'd be at least tangential corroboration presented. Even if the case mainly really hangs on the victim's testimony.

(Incidentally, this reminds me of the complaint that's been made against Jehovah's Witness's handling of sex abuse cases in their denomination; evidently they have some sort of rule that anything has to be proved by at least two witnesses, and most people don't conveniently sexually abuse in front of a witness.)

[will]

This is a difficult case. The military cannot have soldiers going awol. Every soldier certainly has a great incentive to fabricate so that he or she does not have to go back to war.

Although this is rape, a similar situation could play out with other soldiers:

"I do not want to go back because my commanders want me to kill innocents."

I do not think she would have to show that she was raped beyond a reasonable doubt. However, such a showing on her part should probably only go to mitigation, not to completely excuse the going awol.

[Chipmunk]

Mr. Duff is correct that there are two separate alleged criminal acts here. For Specialist Swift, the rape is, at best, mitigating evidence for her alleged act. It is a tough case. Sadly, there are still a lot of these types of claims that circulate amongst the military (the recent trial of an Annapolis Midshipman as one example).

[will]

I wanted to add something else.

The military really should investigate this matter with vigor. In the military, you are supposed to trust your fellow soldiers with your life. The entire structure of the military depends on that premise.

A violent, sexual assault has absolutely no place in the military. The military should have zero tolerance for any soldier who commits it, covers it up, or fails to report it. (Moveover, the military's action to punish should be based on the preponderance of the evidence, not beyond a reasonable doubt.)

[will]

PS: The words "violent, sexual assault" should be considered redundant as a sexaul assault is by definition an act of violence.

[Dianne]

No other women in her unit complaining of anything similar?

That doesn't imply by any means that no other women in her unit were assaulted and raped. They almost certainly were. I work at a VA and have started asking my patients if they've ever experienced sexual assault while in the military. Note that I'm a hematologist, not a psychiatrist so patients I see are NOT selected for those who are especially traumatized. Every female patient I've asked acknowledged having experienced sexual assault* and nearly half of them experienced rape. Just to give a general idea of how common and how under-reported this sort of thing is. Punishing this young woman or even punishing her attackers is not going to stop other women from being assaulted and going AWOL rather than face their attackers. Only changes in the military's policy towards sexual assault and, ideally, changes in society's views on the acceptability of sexual assault and harassment, will make any progress in this area.

*Some of it limited to fairly "minor" incidents like unwanted touching.

[Dr.Sue]

Building on Dianne's point, I hope this young woman was given a thorough psychiatric examination. One of the criteria for a diagnosis of post traumatic stress disorder is avoidance of stimuli that remind the victim of the traumatic event, especially places and people associated with the event. Chances are her failure to return was not entirely under her control, and this needs to be documented.

[Dan]

A womans right to say no should be absolute any time and anywhere.

[Ismone]

I've read reports that other AWOL soldiers were not prosecuted as aggresively as she was.

Also, not only can you convict with only one witness, I reviewed a murder case when I did post conviction work where there was only one witness to the killing and no body. In most mugging cases and in some assault and battery cases, it is alleged victim vs. alleged perpetrator. The difference between those cases and rape cases is that while the alleged perpetrator in a rape case almost never claims that the complaining witness raped them, some assault and battery cases involve who threw the first punch because both sides threw punches. So, you've got one person saying a crime wasn't committed and another saying one was, versus two people, one of whom had to strike the first felonious blow (except for a limited number of circumstances involving reasonable but incorrect beliefs that they were in imminent danger...)

Plus, I don't understand why an alleged lack of sexual harassment/rape of other women in her unit is at all relevant. Sexual harassers and rapists don't necessarily do it to every woman who crosses their path.