Should every sexual assault accusation be prosecuted?

The US military has been rightly criticized for not taking sexual assault seriously. But has the pendulum shifted too far the other way?

I’ve written before about Josh Seefried, who I know personally, and who used to chair the board at OutServe-SLDN, the organization that was (and I suppose still is) the premier “gays in the military” — now gay and trans in the military — organization, but which recently fell on hard times (aka bankruptcy).

Josh has been facing some additional trouble, that I wasn’t going to weigh in on, but things have progressed to a point where it’s worth our consideration, and raises questions about the larger sexual harassment problems in the military.

Long story short: Josh was accused, along with a member of the Coast Guard, Cmdr. John Fiorentine, of sexually assaulting a Marine. Specifically, the Marine (Lt. Edgar Luna) alleged that Josh and Fiorentine had sex with him while he was asleep and/or blacked out from alcohol. (All three men are openly gay.)

Josh Seefried.

Josh Seefried.

Pretty serious charges. Except it’s increasingly looking like they’re not even true. The case raises the question of whether senior commanders at the Pentagon are so fearful of blowback from not prosecuting sexual assault and harassment allegations that they’re now prosecuting even those claims independent observers believe to be untrue. (And when you’re dealing with a charge as incendiary as rape, there are career and personal consequences to being unjustly accused.)

In Josh’s case, an Air Force colonel overseeing the hearing on the case recommended that it be dropped for lack of evidence, and because Seefried would likely be acquitted. But the general in charge, Darryl Burke, went ahead with the prosecution anyway:

[T]he investigating officer presiding over an Article 32 hearing for Seefried last August concluded that insufficient evidence existed to obtain a conviction in a court martial. The investigating officer, Col. Robert Preston, recommended that the case not be brought before a court martial. Preston also presided over Wednesday’s reopened Article 32 hearing.

In an action considered controversial, Major General Darryl Burke, commander of the Air Force District of Washington, overruled Preston’s recommendation and ordered that the case go to trial in a court martial, which was scheduled for Jan. 26.

Two Air Force generals lost their jobs in the past few years after refusing to pursue a court martial against an Air Force member accused of sexual assault.

Luna, the accuser, is claiming that he got drunk at a restaurant, blacked out, and then woke up in bed with Seefried and Fiorentine:

Sources familiar with the case said the Marine told investigators that he became so intoxicated at the New York restaurant that he had no memory of how he got from the restaurant to Seefried’s hotel room and what had happened until he woke up naked in the bed with Seefried and Fiorentine.

Things got even more interesting this week when Fiorentine — who was granted immunity in order to testify for the prosecution — exonerated Seefried entirely. Fiorentine testified that he was part of a consensual three-way with Seefried and the Marine. He says the Marine did not pass out or black out, and that all three men were awake, aware and willing participants.

Not to get too graphic, but it’s relevant to the fact pattern, Luna is basically alleging that he was finally awake, but still drunk, and that Seefried performed oral sex on him, got him erect, and then placed Luna’s member on Seefried’s buttocks. And Fiorentine says he watched it happen, and Luna was quite willing.

Luna’s defense merits some discussion. Now keep in mind, Luna is not alleging that he was blacked out at this point. He claims he was drunk and didn’t consent.  How did he show his lack of consent?

Sources say the Marine reportedly told investigators that he believes he showed his unwillingness to participate in the sexual encounter with Seefried by lying still on the bed without saying anything.

I’m reminded of a discussion I had a few years back while planning a panel discussion at a Netroots conference. The panel was devoted to “sexism among the A-list blogs,” and, inauspiciously, I was the only “A-list” blogger invited to appear. My concerns deepened when the panel participants concluded that there was no need for us to spend time explaining how this “sexism” manifested itself — since everyone “knows” it’s rampant — and rather, we should spend our limited time discussing solutions.

I was a bit thrown, as I wasn’t really sure I understood the details of the problem. That isn’t to say there isn’t sexism online. Not at all. But in a discussion of such sexism, and how one goes about solving it, I felt it was important to at least define the problem, and consider why it’s happening in order to stop it from happening in the future.

It was then explained to me that alleged victims of sexual harassment do not need to explain, or prove, their case. The simple fact of the accusation means it’s true, and to ask the accuser to prove their allegation is insulting.

As a lawyer, I took issue with the notion that an accuser is always right, and the accused always wrong. First, people sometimes lie. Second, even if they’re being truthful, they can simply get the facts, or the law, wrong. You might think I wronged you; but in the eyes of the law I haven’t — the facts you allege simply aren’t a crime (and you may not even be remembering the facts accurately, through no fault of your own). That is why we have an entire criminal justice system, and more general legal system, devoted to discerning the truth. Because not ever charge merits a conviction.

Back to the case of the Marine who, while awake, claims to have said “no” by laying back quietly while receiving oral sex. I worry whether Major General Darryl Burke isn’t playing from the same songbook as the panel participants who passionately lectured me about sexual harassment not needing to be explained or proved. When you have a charge so serious that the mere accusation can irreparably damage your career, there’s must be some burden of proof necessary for moving forward with prosecuting the crime.

CyberDisobedience on Substack | @aravosis | Facebook | Instagram | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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