On 19 November 2013, the Army Court of Criminal Appeals (ACCA) in U.S. v. Trank ruled that a military judge erred in not allowing an alleged sexual assault victim’s Article 32 testimony in as evidence in the court-martial when she refused to testify at the court-martial. This case involved a child accuser, but this does not mean that this decision cannot extend to an adult alleged victim. ACCA made this decision stating that the Article 32 testimony was allowed because the defense had an opportunity to cross examine the alleged victim at the Article 32 hearing. This is a disturbing decision for many reasons. First, this decision may be contradictory to the Constitutional 6th Amendment right to confront the witnesses at one’s trial. Second, if this becomes a standard procedure, then all sexual assault victims could testify at the Article 32 and then refuse to testify at court-martial to spare themselves and an accused may still be convicted for sexual assault despite this. Third, if a defense counsel’s strategy is to “hold back” during the Article 32 cross-examination of an alleged sexual assault victim and that cross-examination is the only version heard at the court-martial, then the accused has not had the opportunity to be fully represented. Finally, if the reason that the alleged sexual assault victim is refusing to testify at the court-martial is because she is recanting and no longer believes she was assaulted, then the panel or military judge will never hear and consider this new evidence. Hopefully, the Court of Appeals for the Armed Forces (CAAF) will weigh in on ACCA’s decision in this case. Regardless, however, this demonstrates that now more than ever, if you are facing sexual assault charges at a military court-martial you need someone with experience right away. You need to have experienced counsel with you even before the Article 32 hearing. I have that experience. Don’t wait, call now. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.
