Dear reader. Humor me and try this. Read this article:
Go on, I’ll wait. Done yet?
How did it make you feel? I bet it was upsetting. If the title did not clue you in, the first couple of sentences should have done the trick.
“I am sorry. I have been sorry. I will always be sorry for raping you.”
Those are the words of the accused. A person whose name and rank are spelled out in the article and reflected prominently on charging documents and court-martial records. He is a high-ranking military officer whose recorded confession is now a matter of public knowledge, and along with it, the whole world now knows that this man is a rapist.
Or is he?
His conviction was thrown out. So, technically, he is not guilty of rape. At least legally, he is not a rapist.
Is this a reflection of the shortcomings of the military-justice system? A miscarriage of justice? The workings of some unscrupulous defense attorney who was able to bend the system to her will and succeeded in allowing a guilty client to escape on a technicality?
The evidence, at least as presented in the court of public opinion by way of the above-linked article, is damning. After all, he confessed. And his words are recorded and transcribed, leaving little room for argument about what happened. Just in case you were too lazy to click the link as requested, I’ll quote below exactly how the article presents the accused’s recorded confession. The victim is identified only as DK to protect her privacy:
Then, he raped her. ‘I am so sorry for pushing myself on you’ he says on the call. ‘For not respecting you as a person and listening to you and stopping.’
Maybe he raped her because of ‘you know, off-duty stress in my life or whatever,’ he suggests. Not that that’s an excuse, he adds.
Maybe it was his age and maturity at the time. ‘I was young and immature and, um, younger – um, younger and immature and, um, had a – didn’t have an appreciation for, uh, everyone as human beings…’
Maybe he did it because he liked her. ‘You’re like a little sister,’ he tells her. ‘I was really fond of you; really into you. I think that was obvious.’
Maybe he raped her because of their prior interactions. ‘Uh maybe I used your – you know, your – how you reacted to me when we were, you know, sober when we were at work, when we were not drunk, um, as like what you really, really wanted instead of listening to you when I needed to,’ he says.
‘I told you it hurt,’ DK says. ‘I tried to get away from you. I told you to stop. Why didn’t you listen to me?’
‘Um-‘ DK presses him.
‘You raped me. You destroyed me. For eight years, I have had to live with this by myself. I can’t talk about it; I can’t tell anybody. You took everything from me. Why?’ she asks.
‘I didn’t know the repercussions and even if I did I wasn’t — I was selfish. I was —’
‘I need to hear you say you are sorry for raping me,’ she tells him.
‘I am sorry. I have been sorry. I will always be sorry for raping you,’ Briggs says.
The conversation was approximately 20 minutes long.
How could this be anything but the confession of a rapist, guilty in words and deeds, if not in the eyes of the law?
Let me count the ways.
First, the article makes several misleading and/or outright false representations, which is a pretty big strike against the journalistic integrity of CNN. It takes the rape, and the confession, fait acompli (or res judicata, to borrow a legalistic phrase) and takes several statements by the alleged perpetrator out of context as well as out of sequence. To have some cover for their sleight of hand tactics, CNN does include a link to the actual transcript. If anyone bothers to read the transcript instead of the cherry-picked, out of sequence quotes presented by CNN, the glaring misrepresentations, nay outright lies, in the article will become obvious. More on this later. For now, some more context follows.
Second, the incident occurred in 2005. The recorded conversation took place eight years later, in 2013. CNN of course acknowledges the passage of time, but fails to explore that 8 years is a long lapse of time to recall the details of an incident that was admittedly clouded by consumption of large amounts of alcohol by both parties involved.
Third, the sexual encounter was between an officer and an enlisted service member. In the military, that is a big no-no. It’s known as fraternization, and provides both parties with motive to not discuss any intoxicated misadventures in violation of the policy against fraternization. It also may provide a motive to fabricate; or at least provide an incentive for the mind’s natural tendency to remember things in a self-serving way so as to provide a non-consensual excuse for an otherwise consensual act.
Fourth, this wasn’t simply a conversation that a victim recorded to have peace of mind in hearing her alleged attacker confess. This was what’s known as a pretext phone call set up by military investigators to trick a person into making a statement they can later use to convict him. And if you pay attention to the sequence of statements in the actual transcript, as opposed to the strategically selected out-of-sequence quotes presented by CNN, the progression shows the following: (1) the alleged perpetrator answers the phone to talk about something quite innocent; “a few minutes of your time to talk to you about something.” More specifically, with reference to the time the two service members were on temporary duty (TDY) at a location known as Mountain Home together. The question then is:
“I wanted to know why you had sex with me when I was so drunk?”
This is the start of the conversation, but the context was provided by the prior question, which is telling:
“I’ve been going to counseling for a while. Um, my counselor thought that it would be a good idea if I could call you to get closure for what happened the last night”
Imagine receiving a phone call from a prior one-night stand, explaining that she has been going through counseling, and seeking closure, based on the therapist’s advice. That’s the full context for the question – and the question says nothing of rape. It is simply: why did you have sex with me?
All the damning quotes highlighted by CNN are in response to this question. Specifically, the accused isn’t making excuses for ‘raping’ the alleged victim, as mockingly (and shockingly) presented by CNN by stating his motive was ‘off duty stress.’ Nor is he blaming his lack of maturity as an excuse for rape. Everything quoted by CNN is in response to a plea from a person who appears to have been very much upset by something that the accused states as:
“…that night it seemed like both of us wanted it to happen.”
“I honestly don’t think that we did anything that right at that moment we didn’t want to.”
Yet those statements are left out. The startled officer’s response is sympathetic to a troubled person’s request for closure, at the behest of her therapist. They say nothing about rape. That is first mentioned by DK as she is executing her scripted requests for damning statements, which plays out as follows:
[DK]: You raped me. You destroyed me. For eight years, I have had to live with this by myself. I can’t talk about it; I can’t tell anybody. You took everything from me. Why?
[The Accused]: I didn’t know the repercussions and even if I did I wasn’t—I was selfish. I was—
[DK]: I need to hear you say you are sorry for raping me.
[The Accused]: I am sorry. I have been sorry. I will always be sorry for raping you.
[DK]: Thank you.
Why might someone apologize for having committed rape if they have not actually done so? There could be lots of reasons.
One: to show sympathy for a clearly troubled individual in need of therapy for something that occurred long ago, which both parties initially described as a consensual encounter (one asking why he had sex with her, conspicuously omitting the word ‘rape’ from the question, the other stating explicitly that he thought it was a consensual encounter.)
Another: compelled to do so out of fear of other consequences, such as the violation of the policy against fraternization.
Yet another: the military’s Sexual Harassment and Assault Response Program (SHARP), which at one point popularized the legally flawed idea that a person cannot consent to sex after only one drink. If rape is defined so broadly, then there are more rapists out there than the justice system will ever be able to handle.
Contrary to the CNN article’s premise, what this case illustrates is why we need statutes of limitation. Although currently there is no statute of limitations for rape in the military, there should be, especially when the charge is supported primarily by one person’s account. There are innumerable reasons why an individual will remember things quite differently than another individual observing or experiencing those same events. In the military, those reasons are multiplied by various policies, such as fraternization, as well as the heightened political pressure to prosecute alleged sexual assaults; a fact to which this article also alludes by noting that there has been an increase of reports despite the military’s efforts to eradicate this ‘cancer.’
All of these are further complicated by various agendas that from time-to-time capture the popular imagination, as has the issue of sexual harassment and assault in the military in particular, and in society at large. Pundits can easily score political points by fomenting outrage through anecdotal accounts, whether true or based on misrepresentations of the facts.
Outside the courtroom, it is all too easy to say #me too with each bandwagon that rushes by. But our legal traditions are based on the presumption of innocence, where allegations are to be taken as untrue until proven beyond a reasonable doubt. Rules of criminal procedure and other protections are important bulwarks against government overreaching and mob rule.
An important policy that supplements the presumption of innocence is the notion that after a certain amount of time, a claim is too stale to make. Statutes of limitation prescribe a certain number of years after which claims cannot be prosecuted. This makes sense, especially in light of how demonstrably malleable human memory is, and more so over time. Also, a person’s ability to defend against accusations is likewise reduced through the passage of time as witnesses and evidence become less and less available to the defense. Meanwhile, the prosecution can make use of trickery, as put on display in this case, in DK’s scripted pretext call calculated to induce incriminating admissions about an intoxicated one-night-stand 8 years prior.
Under a tremendous amount of political pressure due to anecdotal accounts sensationalized by the media, the rules applicable to the military justice system have been amended numerous times, each amendment seemingly calculated to make it easier to convict those accused of sexual assault.
But justice is not a numbers-game.
Each case must be decided on its own facts, without allowing easy targets to become the whipping boys so the system’s need for increased numbers of convictions is satisfied. The handling of sexual assault allegations in the military, and society at large, is an important and delicate issue that deserves better coverage and scrutiny than the type of sorry appeals to emotion and inflammatory, out-of-context quotes such as those employed by CNN in this third-rate bit of shady journalism. Victims deserve to be heard and respected, and society should be protected from crime, including sexual assault. But not at the expense of the presumption of innocence or the erosion of due process. Righteous indignation is easily exploited with results that lead to just that: diminished due process for the accused.
The harder stance is speaking truth to power. Each case must be judged on its own merits, and due process must not be co-opted by an echo chamber of voices drowning out all others as they scream in unison: #me too!