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.

Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Instagram | Google+ | 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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49 Responses to “Should every sexual assault accusation be prosecuted?”

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  2. Isaac Kennen says:

    I think plenty of sexual assault cases are taken to trial in the military without sufficient evidence. Those cases usually result in acquittals – hence the Air Force’s 55 percent acquittal rate on these crimes.

    But, sometimes those cases result in convictions – which could be a symptom of a system which permits convictions by panels of as few as 3 jurors who can convict with a mere 2/3 majority vote. One might argue that the ease of obtaining a conviction in the military jurisdiction invites federal military prosecutors to make charging decisions which would not be entertained by a federal prosecutor facing a 12 member civilian jury that is required to be unanimous.

  3. Isaac Kennen says:

    I’m not so certain that sexual assault cases rarely make it to court without good evidence. The Air Force’s 55 percent acquittal rate would seem to say otherwise.

    Members of Congress have asserted publicly that they will block the promotion of any officer who shows clemency to an accused. The President has stated publicly that he expects consequences upon allegations of sexual assault. One might argue that commanders take notice of such things and strive to satisfy the desires of civilian leadership, and that the desire to please might taint how a commander perceives allegations made by non-credible complainants. One might point to cases like U.S. v. Wright … where a recent appellate opinion discussed how Air Force senior leadership overruled the decision of the Air Force’s European general court-martial convening authority after that officer found, after advise from legal counsel, that insufficient evidence existed to pursue a prosecution, and dismissed the charges. Senior Air Force leaders then took that case away from Europe, charged the accused anew in D.C., and the lawyer for the convening authority in Europe was then allegedly chastised by the Air Force’s head lawyer that not prosecuting the case placed the Air Force in a difficult position with Congress, and that the Air Force’s standard for pursuing a prosecution in a sexual assault case is: “unless there is a smoking gun about the
    victim’s credibility, all victims are to be believed and cases referred to trial.” (And, here I thought the ABA standard for prosecutors to pursue a charge was “sufficient admissible evidence to support a conviction.” How quaint.)

  4. mirth says:

    Good. Now I can stop worrying about you. :)

  5. armyvet05 says:

    I apologize if I wasn’t clear. I was referring to the panel you were invited to appear on- the one discussing sexism in blogging. For me, including that here in this story conflates the criminal justice system with a public discussion of social issues. Your retelling of the panel discussions seems to suggest you wanted to have the problem sufficiently explained to you rather than investing your time in learning more about it. It also seems that you wanted to apply criminal justice system level rules of evidence. Public discussions of social problems need not to be under “the eyes of the law” as you describe. Someone speaking about their own experience doesn’t equate to making the actual or alleged perpetrator a criminal. So in that sense, no, sexual harassment need not to be explained or proved to you because you are not the criminal justice system and you cannot meet out punishment. Learning more is helpful and I’m sure quite welcome, questioning people like you are a defense attorney or judge is not. If you are publishing a story fact checking is expected, but a panel doesn’t seem to be the place to operate from the rules of evidence.

    All of the above has nothing to do with whether you should write a story on a military sexual assault trial. My critique on that issue is that the premise – should “every” case be prosecuted isn’t even an issue, so posing that question is misleading- as if answering “no” to that question is the same as answering “no” to whether this particular case should be prosecuted.

  6. armyvet05 says:

    And that (Should “this” sexual assault allegation be prosecuted?) would be a completely different question what is asked here- Should every?

  7. Not ill, just busy :) And thanks :)

  8. Well, if I didn’t write about every topic that someone felt I wasn’t an expert on, I wouldn’t be writing about anything. It tends to be a way of shutting down people one doesn’t agree with, and it’s an argument I tend to reject.

  9. Badgerite says:

    My personal favorite is his deeply held conviction that what we need most from “our leaders” is……..wait for it…….”leadership”. I wonder if he had to consult Henry Kissinger to come up with that one?

  10. Badgerite says:

    Possibly. But those clearly are not the facts of this case. Are they?

  11. Badgerite says:

    Not every? Try most. Which is why the insistence on prosecuting this one is somewhat suspect.

  12. TheAngryFag says:

    Exactly. The flaw to this lies in Title IX itself. If an assault happens, the victim has three options. They can file a complaint with the institution, they can file a complaint with the DoE’s Office of Civil Rights, or file a lawsuit against the institution. There is no requirement that they do one before the other so someone could simply file the lawsuit first. This incentivizes Universities and such to over-react.

    The other problem is the DoE is full of shit. A while back the DoE sent out a “Dear Colleague” letter that is being treated as law. Someone latched on to the 1/5 statistic which was from two schools with small populations and extrapolated it to the entire nation. To put some context on that statistic, 20% is the rate of rape in the Congo where it is used as a weapon of war. In this letter it also directs institutions to lower the standard of guilt from “Clear & Convincing” (roughly the same as a civil trial), to “More Likely than Not” which is essentially 50.1%. The law faculty at Harvard have pointed out that this letter is not legally binding because it never went through the proper procedure including public comment period. Unfortunately no University has the balls to stand up to the DoE. Harvard itself capitulated and settled with the DoE which declared Harvard in violation of Title IX because they failed to lower their standard from Clear & Convincing.

    If Obama had a brain and some balls, he would have axed Arne Duncan, the Sec of Ed, a long time ago.

  13. BeccaM says:

    Notice the common thread in all four of those accounts? The college or university conducted their own investigation and their own extrajudicial ‘trial’ outside of the actual law.

    Which suggests that school administrations, which have a vested interest in making crimes of all kinds just “go away”, should never have the authority to bypass law enforcement or our courts.

  14. TheAngryFag says:

    I definitely agree with you, I do not want to see the pendulum swing back either. Unfortunately it will swing back a little but the question is how far and, as the way things are going now, it might be a pretty strong push back. The problem is not that, the problem is how the universities are handling it because of the fear of the DoE’s Office of Civil Rights coming down on them. Here are a few cases:

    1) University of Michigan – Engineering Student Drew Sterrett had a consensual sexual encounter in his dorm room. His roommate was awake during the encounter and heard everything, even going so far as to send a message on Facebook in the middle of it to Drew noting it. The alleged victim in the case said absolutely nothing to the university in spite of months going by and the two are are living in the same dorm. Summer rolls around and the alleged victim’s mother finds her diary which details drug/alcohol use and sexual encounters. Then suddenly she was the victim of an assault. UMich conducts an investigation and only interviews Sterrett once, never telling him what complaint has been lodged against him and discouraging him from seeking an attorney. UMich ignores not only the testimony of Sterrett’s roommate, it also ignored the testimony of the alleged victim’s roommate that the time who swore in an affidavit on behalf of Sterrett that the alleged victim’s mother harassed her about “being a good friend” and such; the mother seemed to be driving this whole thing and Sterret got screwed as a result. Sterrett is currently suing UMich.

    2) University of Colorado Boulder – In this case the alleged victim recanted her story and admitted to the University that her allegations were made up. The University still carried out punishment of the the male victim.

    3) Vassar – A student has a consensual sexual encounter with another student. Afterwards the alleged victim sends messages over Facebook said that she had “a wonderful time” and was “really sorry” she led him on. A year later he is slapped with a sexual misconduct complaint and, after his request for a student to sit on the panel reviewing the complaint was rejected, he was adjudicated by a panel of faculty members who all worked with the alleged victim’s father who was also a faculty member at Vassar.

    4) Occidental College – Two students who were very inebriated hooked up. The alleged victim’s friends came by the room during the encounter to check on her and she said she was ok and was staying. The male student believed she was lucid enough to give consent. Afterwards they were embarrassed by what had happened so that agreed to never speak of it again. The alleged victim later filed a complaint and LAPD was called. LAPD’s investigation concluded that this was a case of two individuals exercising poor judgement but nothing criminal had happened. An attorney for Occidental concluded the same thing. The key here is that Occidental College has a policy that alcohol consumption renders a person unable to give consent. The attorney also noted that the alleged assailant did not know of the girl’s condition because he himself was inebriated and, as you probably guessed, Occidental’s policy also states that the assailant’s consumption of alcohol is irrelevant. Hence the alleged assailant was punished. The problem here was Occidental only applied it to the male when in fact, if they had followed their own policy, the alleged victim also sexually assaulted the alleged assailant because he too was drunk and therefore unable to give consent.

  15. BeccaM says:

    I just don’t want to see the pendulum swing too far the other way though. That’s why anytime I hear or read, “…and the accuser should be punished” — the message there is too much of an implied message to rape and sexual assault victims, urging them not to come forward.

    It may seem like I’m splitting hairs, but I’m not. That’s why I separate “accusation” from “conviction in a court of law.” False accusations do happen, but they are rare, far more rare than substantiated accusations which are never investigated or prosecuted, sometimes even when there actually is evidence. It happens every time a woman is asked if she did something to invite the rape, such as wearing a skirt or tight pants or had any alcohol to drink, as if simply being in a particular situation gives implied consent. Or when the cop discourages the filing of a report in the first place.

  16. armyvet05 says:

    To be honest I’m not sure John is the best person to look to for discussion of sexual harassment- if only for what seems like a general, self professed, lack of knowledge on the subject. I’m not intending to insult him, but he could do a lot of research himself instead of asking to be instructed on it. There is plenty of information already available on the Internet, let alone from actual people.

    Not every sexual assault that is reported in the military is prosecuted, so the initial question as proposed is a moot point that never has and never will be an issue. Even just as thought exercise, the basic fact that not every case is prosecuted seems to not be given its due weight in this article.

  17. TheAngryFag says:

    Exactly Becca. It’s also what we’re seeing in Higher Ed institutions as well. The mere accusation becomes a conviction and the rights of the accused are stomped on and exculpatory evidence is ignored. Thankfully the victims in some of these instances are fighting back against the schools’ railroading and filing lawsuits.

  18. mirth says:

    Since this thread seems played out, here’s an interesting OT:

    Watch Martha Raddatz do her job interviewing doofus Scott Walker.

  19. Indigo says:

    True in the event that one is a loyal subject of the Crown but a tad dicey otherwise.

  20. FLL says:

    From your post: “First, people sometimes lie.” This is an unfortunate fact of human existence, and that’s why it’s important to determine which of the three servicemen is telling the truth or, if they are telling the truth, whether their accusation actually constitutes a crime, or even whether their memory serves them correctly. However, I don’t think inquiry should be limited to the three servicemen. Since the majority of victims of sexual misconduct in the armed forces are women, it’s worth asking whether Major Gen. Burke has taken those complaints seriously over the years. If he has, fine, and no more needs to be asked of Burke. If he hasn’t, then people have the right to ask exactly why Major Gen. Burke is so interested in prosecuting this particular case. Selective outrage on the part of Major Gen. Burke would look very suspicious.

  21. FLL says:

    The additional information from the Washington Blade report provides very strong supporting details in your analysis. I can see that you’re not trying to form your conclusion first, but rather gather the available facts and then form your conclusion, which is what I wish everyone would try to do.

  22. FLL says:

    “Scratch the surface and I’ll just bet you’ll find a guy [Maj. Gen. Burke] who absolutely did not want DADT repealed.”

    Dead on target.

  23. rmthunter says:

    “sexual assaults should be thoroughly investigated and based on that be fully prosecuted if warranted”

    There’s the key, and it looks as though in this instance the officer investigating came to the conclusion that prosecution was not warranted.

    There are a lot of “maybes” in your comment, and I’m not inclined to considering seriously a scenario based on maybes. If Burke has other evidence, why didn’t he make it known to the investigating officer? And how would he have independent testimony? He’s not investigating the case. Any witnesses would be referred to Preston.

  24. rmthunter says:

    Excellent, Becca. A lot of what I was trying to say, very clearly laid out.

  25. rmthunter says:

    Does anyone know Burke’s attitude toward gays in the military? It occurs to me that might have some bearing on his decision to go ahead with a court martial.

    As for the online sexual harassment panel — those people are idiots. Like you, I live in an evidence-based universe (not from law, but from a background in science, but it occurs to me that the two use a lot of the same tools), and am perhaps even more aware that memory is pretty malleable. (That background in science involves a degree in psych, among other things.)

    Luna’s obviously unreliable, based on your account — first he blacked out and doesn’t remember, then he remembers but didn’t give consent, but apparently made no effort to stop the encounter, merely went passive while receiving fellatio. (And of course, no one ever does that.) Wonder what his next version of events will be — so far, there’s no evidence of coercion, but who knows how he’ll decide to buttress his story?

    As for your larger question, I learned long ago that history is a series of reactions. That applies to smaller cycles as well as larger movements. Eventually, all else being equal, things level off, but it can sometimes be a bumpy ride. It works more smoothly if people refrain from substituting emotional/ideological/religious reactions for rational solutions, but that almost never happens. That looks like what’s happening here. (And I wonder how much pressure there is from the top of the command structure to pursue these sorts of allegations. I don’t think that can be discounted.)

  26. Facebook User says:

    The US military has ignored almost every sexual assault in decades! The fact that justice and our security start with the military then EVERY sexual assault should be prosecuted because clearly these rapist don’t get its a crime!

  27. mirth says:

    I meant earlier to tell John that this is a well presented, especially thought-provoking post, which is the very best kind, and to say I hope his posting absence isn’t because he is ill.

    And to ask this:

    If the accused were heterosexuals (who like most straight men enjoy penis/anus play or the evil kind who use violence to demean a gay man), or, better scenario, both straight men with a female who is the accuser of assault, would anyone’s mind be changed about this proceeding to a court martial?

  28. DRoseDARs says:

    Which I would guess is part of why the Pentagon recommended this be dropped due to lack of evidence supporting the accusation.

  29. mirth says:

    I love reading everything you write, BeccaM, and usually agree (not to mention learn from), but in doing that I’ve also learned that disagreements with your opinions can become circuitous, so I’ll end replies on this subject by saying that, regardless the limitations of it, I know many servicepersons, more of them in active service but some who are now inactive, various ranks and ages, and none of them, not one, disagrees with gays serving openly, who all believe without exception that sexual assaults should be thoroughly investigated and based on that be fully prosecuted if warranted and know full well that such a case rarely if ever makes it to a court martial without strong evidence, nor, coincidentally, would any of them, mostly because they value their jobs and reputations, attempt sex with a more-than-mildly intoxicated person.

    I’m not arguing for either scenario. Too little is known, particularly the investigative evidence given Major Burke, but based on what little we know and on my personal experience, I argue that both speculative scenarios carrying equal weight is reasonable.

  30. BeccaM says:

    I could… except that there has been no such evidence or patterns noted anywhere in any of the accounts. So I prefer to direct my own speculation into areas where I believe the truth is more likely to be.

    So no, I do not agree that the two speculative scenarios carry equal weight, not even close. Lt. Luna’s black-out drunk inebriation should be EASY to establish if such occurred.

  31. BeccaM says:

    Could be, but I’m opining on this particular case alone, where Lt. Luna’s claims of being black-out drunk before leaving the restaurant should be easy to corroborate if true.

  32. mirth says:

    One could as well speculate that Major Burke has “physical evidence, witnesses, pattern of independent reports of assault by victims who have no way of knowing each other” and is sickened by rampant sexual assault in the ranks and is determined to uphold the military code of conduct in court and is able to carry out his duties regardless his personal thoughts on gays serving openly which may be something he supports.

    Based on what we know about this case, both speculative scenarios carry equal weight.

  33. GarySFBCN says:

    Yeah but. . .I would like to see the statistics regarding how many times the group has recommended prosecution vs dismissal. It could be that they always recommend dismissal regardless of the evidence.

  34. emjayay says:

    I thought lying still and thinking of England was what you were supposed to do.

  35. BeccaM says:

    Yep, exactly.

  36. BeccaM says:

    Given the initial recommendation to dismiss for lack of evidence and Burke’s insistence on reopening the case, I do believe there’s an anti-gay angle in the prosecution.

  37. emjayay says:

    Your speculation is what I was thinking too. Isn’t it highly likely that Burke is well aware of who Seefried is and had opposed all that he was the symbol of?

  38. BeccaM says:

    I’m usually one who gives benefit of the doubt to the assault accuser, but too many details about Lt. Luna’s account don’t add up. The one I mentioned above was that if, as Luna claims, he was blackout drunk BEFORE they left the restaurant, there should be at least one witness and a while pile of drinks receipts to corroborate this essential detail in establishing inability to give consent.

  39. emjayay says:

    “Also, if he was as drunk as he says he was, someone else getting him erect would be a nearly impossible task.”

    Good point.

  40. BeccaM says:

    Every sexual assault accusation should be investigated. If there is enough evidence that an assault took place, every such accusation should then be prosecuted. Unfortunately, as much as I might wish it to be otherwise, sometimes an assault does take place, but there is not enough evidence. And not every accuser is being truthful. Moreover, we’re supposed to have this quaint notion of “innocent until proven guilty.” This does mean there will be crimes committed where the perp gets away with it.

    But it is better this that than the ability for any random person to accuse someone of a horrific crime and, on their word alone, someone else ends up behind bars.

    I do not believe every accuser is right. Coming from a woman, that may seem to be heresy, but that’s my position. That said though — and this is the important part — every accuser deserves to be listened to with respect, compassion, and a willingness to investigate the accusations fully. However, if there just is not enough evidence to prosecute, what should happen is the accuser should be told simply, “We’re sorry, but we just can’t find enough to go forward with this.” And not a knee-jerk, “You filthy liar, we’re gonna prosecute YOU for filing a false report.”

    (What’s even worse for many women is before we’ve gotten the words “I was raped” out, we’re often being told, “If we decide you’re lying, you will be prosecuted. Now, do you really want to file that report or not?”)

    The only time the latter should happen is (get ready for it…) when there is evidence found to indicate that the report was both false and intentionally so. Unfortunately, this is where the confusion comes in. People conflate “not enough evidence” with “knowingly filing a false report.” It is far, far, FAR more common to be the former than the latter, and nobody whose accusations simply cannot be proven should immediately be presumed to be lying.

    The Seerfried case should actually be pretty simple. Luna claims to have become so drunk at a restaurant that he blacked out. It should be possible to produce at least one independent witness that Lt. Luna was blotto shit-faced drunk before he left the restaurant. There should be receipts available showing the purchase of large amounts of liquor. There should be at least one table server who knows there were three military-looking guys all sitting together and becoming loudly drunk, especially one Lt. Luna.

    At that point, “inability to give consent due to incapacity” could reasonably be asserted. And a prosecution could go forward.

    Basically, there should be buckets full of both concrete and eye-witness evidence if Luna’s account is correct. Fiorentine says they weren’t that drunk and Luna was a willing participant. This difference in their accounts should be pretty easy to corroborate one way or the other.

    This is pure speculation, but what I suspect happened? Yes, there was liquor involved, and inhibitions were lowered. Lt. Luna sounds exactly like the kind of guy who perhaps has acknowledged he’s gay, but he’s not 100% comfortable with it, and perhaps a threesome is further than he would’ve gone if not loosened up by the booze.

    Then we have Maj. Gen. Burke who in all likelihood doesn’t like having gay men serving at all, and even in the absence of evidence he wants to push for a prosecution so he can irreparably damage the careers of at least two servicemembers. Scratch the surface and I’ll just bet you’ll find a guy who absolutely did not want DADT repealed.

    You mentioned this part, John:

    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.

    Yes. Totally true, but perhaps not in the way you think. Someone who says they were a victim of sexual harassment or assault does not need to explain or prove their case… until that case goes into a court of law. If they just want someone to listen and sympathize and perhaps believe, as someone listening to a friend should simply let them say their piece and not challenge them or make them prove to ME that they’re being truthful. Moreover, that person should be believed enough for there to be a thorough investigation. But in a court of law, innocence is supposed to be presumed, and if there is no evidence — physical evidence, witnesses, pattern of independent reports of assault by victims who have no way of knowing each other — then there can be no prosecution and there should not be a finding of guilt.

    Basically, we have three different situations: Someone who was assaulted, and where evidence can be found. Someone who was assaulted, but sufficient evidence cannot be found. And someone who was not assaulted, but who for whatever reasons has knowingly decided to file a false report. (I suppose there could be a fourth alternative where there was a misunderstanding…but that gets complicated fast.)

    It is total fact that the third category, the false report, is very rare. But it does happen, and yes, filing a false report, if provable, should be prosecuted. However, only if it can be proven that the report was known to be false when filed… and here, I’d say Lt. Luna may have a problem. He claims blackout drunk impairment such that consent could not be given, and that the inebriation took place at the restaurant. Even a cursory investigation should be able to turn up somebody who can say, “Yeah, he was basically passed out” or “No, I don’t remember anybody being that drunk that night, least of all some Marine jar-head.” Luna’s accusation hinges on this detail, and if nobody saw him that drunk, then there is no case.

  41. mirth says:

    Every accusation of sexual assault is not prosecuted. Far from it. Nor in some cases should it be. However, a prosecution rarely proceeds from investigation to a court on a case thought not to be winnable (which is in many instances of sexual assault, I think, a failing within our justice system), but every accusation must be thoroughly investigated, regardless the ramifications of it. I don’t know how it works in the military justice system, but there is civilian recourse for those falsely accused.

    In this particular case, I would not fault a lower-ranking “victim” (you don’t give it, but Seefried’s uniform pictured is of a Lt. and Fiorentine is or at least was a Cmdr., 03 vs 05) any more than a female office worker in this situation with TWO other people, a co-worker of equal standing and their boss. In a similar situation I would have probably remained still and seemingly compliant, and afterwards hope that I would have the courage of Lt. Luna to not only have my accusation believed but investigated and I salute Major Burke for taking seriously what is a devastating problem in the military.

    A good rule of thumb is to not have sex with someone who is heavily intoxicated. Ever. I can think of no good reason why this rule – of manners, forgawdssakes, if for no other reason – is not clearly understood and strictly followed, particularly knowing the possible consequences.

  42. nicho says:

    This guy’s accusations are ridiculous on the face of it. First and foremost, he claims he showed his lack of consent by lying still and saying nothing. That only makes sense if he had felt that his life or safety were in danger if he resisted. That just doesn’t seem to be that kind of a situation. Did he try say, “Hey, guys, I don’t want to do this.” Did he try to get off the bed and get dressed? He’s a freaking Marine, for heaven’s sake. He’s trained to kill people. He has learned martial arts. And lying still and saying nothing was the only way he could show lack of consent? Sorry. In this case, I would take that as consent. Also, if he was as drunk as he says he was, someone else getting him erect would be a nearly impossible task.

  43. nicho says:

    Well, seeing as how the Pentagon is a hotbed of Evangelical activism, it wouldn’t be an unreasonable suspicion.

  44. S1AMER says:

    My guidelines are simple: Every plausibly credible sexual assault accusation should be investigated. Those for which a claim of guilt can be argued should be prosecuted. And any claims that are proveably false should result in penalties of some sort on the accuser.

    Of course, applying my guidelines fairly requires diligent and unbiased people at every stage. And there’s the rub, alas. Everybody knows there are vengeful claims of harassment and assult where nothing actually happened, and everybody also knows that many investigators (who are most likely to be male) still don’t fully understand why women protest certain actions by some men.

  45. Indigo says:

    And the humble Argentine pope does nothing to send him to a monastic cell to do penance.

  46. nicho says:

    Same thing going on in the Catholic Church. I have a friend who is a priest. He was taken quite ill and while he was in the hospital, a nun/housekeeper went into his room to clean. She found some adult male porn — my friend is into older, beary-type guys – and reported it to the bishop. My friend was immediately suspended from all duties, they seized his computer to search it, and they treated him as if he were a pedophile. He was sent to a treatment center for two years, although he was not a pedophile, and there were no accusations against him for inappropriate behavior with anyone. He just completed three years of “probation,” again, even though he had done nothing inappropriate — except leave porn where a snoopy nun could find it. The whole experience pretty much broke him. Watch out for swinging pendulums.

    Meanwhile, the criminal pedophile enabler Bernard Law lives in princely splendor in the Vatican.

  47. Indigo says:

    I doubt that every accusation is true but every accusation should be investigated. Accusations for which there is evidence should be prosecuted. Accusations which have no evidence or have evidence of malice directed toward the accused should be . . . well, I don’t know . . . but false accusation is sufficiently destructive that there should be consequences sufficient to discourage false accusation.

  48. Though of course that’s part of the larger problem, is that they tended to sweep hetero accusations under the rug even when they accusations appeared valid. I do, however, worry as to whether there’s a gay angle to the Pentagon’s insistence on prosecuting.

  49. 2karmanot says:

    “alleged that Josh and Fiorentine had sex with him while he was asleep and/or blacked out from alcohol.” Oh, please, the old I was drunk BS. If this was a hetro accusation the Pentagon would sweep it so far under the rug it would languish in the basement forever.

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