Scholarship Saturday: The prosecutor’s dilemma—can the jury, or the court-martial panel, be trusted to get it right on consent?
By Isaac Kennen
Scholarship Editor
www.caaflog.org
An upcoming issue of the Southern
California Interdisciplinary Law Journal (a publication of the University
of Southern California) will feature an article by Dr.
Ruthy Lowenstein Lazar exploring the reasons that prosecutors decline to
pursue sexual assault cases even when they believe the victim: Epistemic
Twilight Zone of Consent (hyperlinked to SSRN).
To explore the question, Dr. Lowenstein Lazar interviewed 29 prosecutors
“selected from a list of prosecutors with experience in the field of sexual
offenses who handled cases of this type regularly.” The applicability of Dr.
Lowenstein Lazar’s work to the American military jurisdiction may be affected
by the fact that the prosecutors she interviewed were Israeli civilian
prosecutors. In particular, as described by Ariel Bendor in Investigating
the Executive Branch in Israel and in the United States, Politics as Law, The
Politics of Law, University of Miami Law Review, Vol. 54, No. 2 (2000) at 219,
the degree of discretion afforded to Israeli prosecutors is less absolute than
that afforded to their American counterparts.
Nonetheless, even with those caveats, Dr. Lowenstein Lazar’s
findings are still pertinent to the American military justice context since the
prosecutorial authorities of both systems (prosecuting attorneys in Israel, and
military commanders, advised by judge advocates, in the American military
justice system) “[h]ave similar responsibilities and similar professional
duties in the two jurisdictions. [A]lso, in the two jurisdictions, the
prosecutorial test is ‘a reasonable prospect of conviction[.]’” Epistemic
Twilight Zone of Consent at 5-6. As to the latter point, American military commanders
are called upon to follow the Secretary of Defense’s published Non-Binding
Disposition Guidance, including its call for them to consider “whether
admissible evidence will likely be sufficient to obtain and sustain a
conviction in a trial by court-martial.” [The Secretary issued that guidance
because he was required to do so by the NDAA for FY 2017, Public
Law 114-328 (December 23, 2016), as implemented by Presidential Executive
Order 13-825 (83 FR
9891, March 1, 2018)].
At its core, Dr. Lowenstein Lazar’s article contends that the
decision of whether to prosecute a large volume of sexual assault allegations
boils down to a “legal discourse of consent” that is hamstrung by what Dr.
Miranda Fricker (Professor, City University of New York) refers to as “epistemic
injustice.” Epistemic Twilight Zone of Consent at 26.
(Oxford definition:
“epistemic, adj.—relating to knowledge or to the degree of its validation.”)
Specifically, Dr. Lowenstein Lazar asserts that our collective and dominant
(“hegemonic”) understanding of what it means to consent to sex was developed largely
without input from women. In other words, our collective interpretation of the
circumstances that constitute consent (or lack thereof) suffers from “gendered hermeneutical
marginalization.” (Oxford
definition: “hermeneutic, adj.—concerning interpretation[.]”). Id.
Dr. Lowenstein Lazar’s interviews with prosecutors disclosed
that the effect of having a legal discourse of consent that is overburdened by
epistemic injustice is that:
[E]ven when the prosecution
recognizes the unique dynamics of sexual abuse and believes the victim, its
decision is still dictated by the narrow conception of consent held by the
court, or one that the prosecution believes to be held by the court.
Id. at 32-33. The emphasis in that
quote is original, and conveys a concept of fundamental importance to Dr.
Lowenstein Lazar’s findings: the prosecutors themselves, “perhaps because of
their experience in the area of sexual offenses, succeed in counteracting
archaic conceptions of sex, sexuality, and consent.” Id. at 38. But, even
prosecutors who have overcome our hegemonic and epistemically-unjust common
understanding of consent will decline to prosecute if they believe the court
where the case will be heard lacks such enlightenment. The article refers to
this dynamic as “prosecutorial realism.” Id. at 30.
Dr. Lowenstein Lazar acknowledges that there are factors at
play in addition to an archaic understanding of consent that make it difficult
for a court to convict. She notes, for example, that sexual assault cases can
be difficult to prove as they are often “based on a ‘word against word’
scenario” and the prosecution has a heavy burden in the obligation to “prove
both lack of consent and the defendant’s mental state.” Id. Nonetheless,
her article contends that those evidentiary hurdles do not account for a
disparity in how courts and juries treat sexual offense cases as opposed to
other criminal prosecutions:
Although the gap between factual
and legal truth is a general characteristic of the criminal procedure, and
exists not only in sexual offense cases, the unique circumstances of these
cases, and the social discourse within which these cases are conducted, greatly
increase this gap, and accordingly, create and intensify the hermeneutical
injustice discussed in this article.
Id. at 39. In particular, Dr.
Lowenstein Lazar asserts that:
[N]orms of consent, heterosexual
stereotypical scripts of sex, and rape myths generate renunciation of the idea
that the act was consensual. Therefore, victims’ stories (complaints or
testimonies) are often [seen by courts as] not plausible, no matter what the
evidence are.
Id. at 30.
Dr. Lowenstein Lazar’s articulation of the rationale juries
and courts use to discount victim testimony (essentially, a biased conception
of consent and the “proper” conduct of women) is un-cited in her article—perhaps
because the data is relatively lacking on the behavior of juries in closed deliberations,
and attempts to obtain such data have been controversial. See Cornwell, Erin, Opening
and Closing the Jury Room Door: A Sociohitorical Consideration of the 1955
Chicago Jury Project Scandal, National Center for State Courts, Vol. 31,
No. 1 (2010). However, Dr. Lowenstien Lazar probably is right – it is likely
that, like the rest of society, our juries and courts are burdened by “stereotypical
scripts of sex” and “rape myths.” But, that is not a complete list of the restraints
and constraints placed upon our finders of fact. The article’s articulation
leaves out the primary factor that leads a court to doubt the testimony of any
witness for the government, including complaining witnesses: the presumption of
innocence.
Dr. Lowenstein Lazar’s work is certainly valuable for criminal law
practitioners. But, its omission of any meaningful discussion of the
presumption of innocence diminishes that value. A principle that is so
fundamental to modern concepts of justice cannot help but be relevant to the
“discourse on consent.” The centrality of the presumption of innocence to
everything a criminal court does is such that the right is nearly universally
recognized. See Practice
Relating to Rule 100—Fair Trial Guarantees—Section C—Presumption of Innocence,
ICRC, Customary IHL Database (accessed 16 January 2021). A court obliged to
afford the accused every reasonable doubt and “to exclude every fair and
rational hypothesis except that of guilt,” United States v. Loving, 41
M.J. 213, 281 (C.A.A.F. 1994), is likely to have difficulty reaching a
conviction in a cases which are, according to Dr. Lowenstein Lazar, often
“based on a ‘word against word’ scenario.” That reality is, indeed,
frustratingly unfair for victims of sexual assault and the prosecutors who
would like to employ the machinery of State to vindicate them. But, the
skepticism our courts hold for the government’s allegations is a feature of a system
designed to protect liberty from arbitrary government power—that skepticism is
by design, it is not a defect.
A second dynamic that Dr. Lowenstein Lazar’s article fails to
contend with is that women are not the only group that has been marginalized
and excluded from the development of our hegemonic understanding of consent. People
of color have doubtlessly been excluded, as well.
The most often-cited rate of false sexual assault allegations is
between 2 and 10 percent. Lisak, Gardinier, Nicksa, and Cote, False
Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases,
Violence Against Women Journal (December 15, 2010). That rate of false
reporting presumably does not change with the race or ethnicity of the victim
doing the reporting. However, we cannot assume that prosecuting authorities
correctly identify false allegations at the same rate for all races and
ethnicities. Data regarding exonerations show that an inmate wrongfully
convicted of sexual assault is three and a half times more likely to be black
than white. Gross, Samuel R., Race
and Wrongful Convictions in the United States, National Registry of
Exonerations, Newkirk Center for Science and Society, University of California
Irvine (March 7, 2017).
No data has been collected, to date, to assess whether racial
minorities in the military are at a higher risk than their white counterparts
of being wrongfully convicted of sexual assault at court-martial, but that
concern is certainly raised by the fact that the Department of Defense has
failed to remedy long-standing racial disparities in the rate of prosecution
and severity of punishment in general, and also has a problem with prosecuting
penetrative sexual offenses despite insufficient evidence. This column
discussed those concerns, in detail, earlier this month in Scholarship
Saturday: We hear drums, drums in the deep.
As such, there is a real concern that our culture's exclusion of racial
minorities from the process of creating our hegemonic understanding of consent
has likely exposed men from racial and ethnic minority groups to a higher risk
of wrongful conviction - including, possibly, in trials by court-martial. But,
accused persons of color aren't the only ones to feel the effect of that
"epistemic injustice." Data suggests that "gendered
hermeneutical marginalization" has likely resulted in an understanding of
consent that disadvantages victims who are women of color more profoundly than
their white counterparts. Specifically, recent empirical research published by
the American Journal of Community Psychology found: “cases involving ‘white’
victims were more likely to have charges filed as compared to ‘non-white’ and
‘black’ victims.” Further, “‘black’ suspects, in general, as well as ‘black’
suspects with ‘white’ victims were more likely to be charged with more serious
crimes and for the charges to be filed as felonies.” Shaw and Lee, Race and the
Criminal Justice System Response to Sexual Assault: A Systematic Review, American
Journal of Community Psychology (May 6, 2019).
The value of Dr. Lowenstein Lazar’s work is somewhat reduced by her failure to
account for the exclusion of these other marginalized perspectives from our
common understanding of the dynamics surrounding. As described above, her work
can also be criticized for failing to discuss how the presumption of innocence
should weigh into a prosecuting authority’s assessment of the likelihood of
conviction. Still, despite those limitations, Dr. Lowenstein Lazar’s findings
offer valuable perspective. It is important for commanders and judge advocates
to remember that, in many sexual assault cases, what they are being asked to
assess is the likelihood that court-martial members will overcome a narrative
regarding consent that disfavors affording credibility to women, racial and
ethnic minorities, and other marginalized populations. Civilian prosecutors may
see the task of convincing 12 jurors to unanimously reject those deep-seated
preconceptions as being an insurmountable hurdle. Significantly, military
prosecutors do not face that same dilemma. Given the lack of a unanimity
requirement, they don't have to persuade all of the court-martial members in
their case to abandon those societal norms. A mere 3/4 will do.
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