Picking up the pieces: The prosecutor’s role

  • Published
  • By Micah Garbarino
  • Tinker Public Affairs
Editor's note: In this series on reporting a sexual assault we wanted to look at each step in the process for a "typical" sexual assault case on an Air Force installation. Last week we focused on the law enforcement's role. This final week we'll focus on the prosecutor's role.

After Airman Doe's interview with OSI was over, a military lawyer called her. They had been following her case since she decided to make an unrestricted report and were in contact with OSI throughout the investigation.

"We like to stay in contact with OSI to make sure they're going to look for the precise information we're going to need to prosecute each individual case," said Capt. Sean Garner a lawyer with the Tinker Legal Office.

The JAG office assigned a person to be Airman Doe's Victim and Witness Assistant Program Liaison. Airman Doe's VWAP liaison was a sergeant trained as a paralegal. They sat down together and Airman Doe rehashed her story...again.

Her VWAP asked Airman Doe a few questions about her comfort level communicating her story in court and the prosecuting attorney had questions for her as well. Airman Doe said she could testify even though they told her "the subject's" lawyers would be allowed to cross examine her.

Because everyone at the party was asleep during the assault, there were no witnesses. Airman Doe's case is a "he said/she said" case with forensic evidence of sexual contact. These types of cases can be difficult to prosecute, but that doesn't mean the Air Force won't try.

"The DOD is really focused on preventing sexual assaults and monitoring how they're prosecuted. In this case, we have a victim who is adamant that she did not consent to sexual activity. She was assaulted. That is a crime and needs to be dealt with," Captain Garner said.

After the JAG reviews the OSI report, they may recommend that "the subject's" commander prefer charges against him. Basically this means that the Air Force wants to prosecute and move toward securing a trial. After charges are preferred, the first step in the court martial process is an Article 32 hearing.

"The best thing I can equate it to is a grand jury investigation in the civilian courts. A neutral hearing officer weighs all the evidence and makes a recommendation on proceeding," Captain Garner said.

In Airman Doe's case, the hearing officer recommends proceeding and the case is referred to a General Court-Martial. In other cases, if there is not enough evidence to support a court-martial or the victim is unable to testify, the charges may not be referred to court-martial. Because it is a serious crime, most sexual assaults will go to court-martial. Any other punishment would likely be seen as a slap on the wrist.

"It's likely all or nothing. The case will either end up going to trial, which is likely, or will be disposed of without a trial. But, it is highly unlikely that such an offense would be handled in another forum, such as non-judicial punishment" Captain Garner said.

When the court martial goes forward, the defendant has the choice of a judge, a panel of officers, or a panel of officers and enlisted. He decides on the latter.

Airman Doe was nervous to testify. She was asked uncomfortable questions, but she sat in the courtroom and looked at the panel and answered every question. She felt better afterward.

This case was prosecuted, the panel could vote either way, and if there were a conviction, punishment would be determined by the panel in a separate phase of trial.
She was a little unsettled by the uncertainty, but it never would have even made it to this point if Airman Doe hadn't made the decision to disclose the attack to the SARC, file an unrestricted report, cooperate with OSI and military justice and be willing to testify in court.

"The Air Force is interested in prosecuting sexual assault cases. The JAG Corps is standing up a Special Victims Prosecution Unit and making resources are available to investigate and prosecute assault cases. Oftentimes the biggest factor considered by Air Force leadership is what the victim wants to see happen in the case. While that's not the only factor considered, the victim's willingness to testify at the court-martial is crucial to all case disposition decisions," Captain Garner said.

Rape is a capital offense, meaning the max penalty is death. However, there are a number of cases out of the Supreme Court that suggest the death penalty wouldn't be upheld if imposed. Aggravated sexual assault carries a maximum punishment of 30 years confinement and a dishonorable discharge.

For more information on the Sexual Assault Prevention and Response Program, call 736-9905.