Best Practice Webinar Series · 2018-04-14 · SAFETA Best Practice Webinar Series This project was...
Transcript of Best Practice Webinar Series · 2018-04-14 · SAFETA Best Practice Webinar Series This project was...
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Welcome to the IAFN SAFE‐TA Webinar: Sexual Assault and the Military Patient
• IAFN requests that you e‐mail the names of any non‐registered attendees who may be sharing this webinar experience with you so we can track attendance. Please send additional attendee names to [email protected] today.
Thank you in advance for your help and cooperation!
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SAFETA Best Practice Webinar Series
This project was supported by Grant No. 2011‐TA‐AX‐K021 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this presentation are those of the authors and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.
2013 SAFEta Best Practices: Sexual Assault and the Military
Patient
Sasha N. RutizerFellow/Senior Attorney
National District Attorneys AssociationNational Center for Prosecution of Child Abuse
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Agenda
• Discuss most recent statistics from the DoDAnnual Report.
• Review the foundations of the Military Justice system and differentiate it from the civilian system.
• Examine the Role of the SANE in providing care to the military patient and within the Military Justice system.
STATISTICS
Victims of Military Sexual Assault
• FY12, DOD received 3,374 reports of SA.
– 3,604 Victims including 2,949 service member victims.
• 2,558 Unrestricted Reports & 816 Restricted Reports
– Of the 2,558 UR, 1,985 were service member victims
– 1,590 of the 2,558 UR were service member on service member
• Victim Demographics‐ 88% female, 12% male
– 51% between 20‐24, 25% between 25‐34, 18% between 16‐19 years old
– 73% are E1‐E4 (Junior Enlisted)
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Offenders and Offenses
• Offender Demographics‐ 90% male, 66% under 34 years old, 51% are E1‐E4
• Types of Crimes Reported
– 60% are penetration type offenses (rape, forced sodomy, aggravated sexual assault)
– 40% are contact offenses (Abusive sexual contact, wrongful sexual contact).
The Inverse Triangle
1,714 Subjects that can be considered for action by DOD Commanders
1,124 (66%)
Evidence Supported CDR Action
880 subjects where charges substantiated
594 (CM), 158 (NJP), 63, 65 (Admin)
302 of 594 Went to Trial
238 Convictions
Prosecution
• In the Army, the number of substantiatedallegations resulting in the preferral of court‐martial charges rose 56% (from 272 to 424) in FY12.
• The Army’s court‐martial prosecution rate of rape/aggravated sexual assault allegations, in which there was a final disposition and jurisdiction over the subject, was 57% in FY12, compared to reported rates of less than 20% among civilian jurisdictions.
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THE MILITARY JUSTICE SYSTEM
The Military Justice System
Offense Medical/SAFE Investigation
Preferral Article 32 Trial
Some Basic Terminology
Civilian Terminology Military Terminology
Trial Court Martial
Jury Panel
Defendant Accused
Prosecutor Trial Counsel
Defense Attorney Defense Counsel
Charge Charge
Count Specification
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Basic Differences
• Charges are “preferred” typically by the Commanding Officer of the accused rather than a district attorney.
• Courts are “convened” only when the Commanding General (GCMCA) “refers” a case to trial, as opposed to a standing court.
• Trials typically take a matter of days rather than weeks (but longer days).
A Uniform Code of Military Justice
• All courts‐martial regardless of location or service operate under the same rules and follow the same procedures.
• The MCM contains the statutes which establish the crimes and the elements of proof (UCMJ) as well as the rules and procedures for the military justice system as a whole.
Investigation
• Air Force Office of Investigatory Services (AFOSI)
• Naval Criminal Investigative Services (NCIS)
• Army Criminal Investigation Division (CID)
• Coast Guard Investigative Services (CGIS)
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The Command Function (Victim’s Chain of Command)
• No Contact Order (Military Protection Order) DD Form 2873
• Expedited Transfer‐ DODI 6495.02
• Monthly Report to Victim
• Delay victim misconduct (get DODI)
The Command Function(Accused Chain of Command)
• Preferral of Charges
• Military Protective Order
• Restrictions on Liberty
• Temporary Transfer
• Must prevent pre‐trial “punishment”
• Non Judicial Punishment
• Administrative Separation
Reporting Options
• Restricted Report‐ Allows victims to confidentially disclose to specified individuals (SARC, SAPR VA, Healthcare) and receive healthcare, emergency care, counseling, and designated SAPR VA and SARC without triggering an official investigation. DoDI6495.02
• SAFE Kit held under anonymous alphanumeric identifier for 5 years
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Reporting Options
• Unrestricted Report‐ Victims receive same services as Restricted Report, the only difference is that an investigation is initiated, and the chain of command is informed. DoDD6495.01
DD Form 2910, Victim Reporting Preference Statement
Types of OffensesPENETRATION CONTACT
Rape= Penetration of Vulva, Anus, Mouth + One of the following methods:1)Force “(A) use of a weapon; (B) the use of such physical strength or violencesufficient to overcome, restrain, or injure a person; or (C) inflicting physical harmsufficient to coerce or compel submission by the victim.”2)Force causing or likely to cause GBH3)Threatening GBH4) Rendering Unconscious 5)Drugging
Aggravated Sexual Contact – Identical to Elements of Rape except that penetration does not occur, but rather a touching.
Contact= touching, or causing another person to touch, directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate or degrade any person.
Sexual Assault= Penetration of Vulva, Anus, Mouth + Threat/ Bodily Harm/*Substantial Incapacitation
Abusive Sexual Contact – Identical to Sexual Assault except that penetration does not occur, but rather a touching.
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ROLE OF THE SEXUAL ASSAULT NURSE EXAMINER
Why Are SANEs Important?
• Regardless of whether victims choose to engage with the justice system, SANEs provide critical role of attending to their health and well‐being
– Not all victims will see their cases prosecuted, but all patients have healthcare needs (short and long‐term)
Why Are SANEs Important?
• Although the goal of SANE care isn’t to ensure that a conviction will occur, research tells us that SANEs make a difference in criminal justice outcomes
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Why Are SANEs Important?
• In cases where medical‐forensic exam is completed, certain things can be done to ensure that it is as useful as possible (not necessarily to the prosecution, but to the process of taking a case forward in the military justice system).
Consent
Medical History
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Assault History
General Physical Exam
General Physical Exam
• Specificity and completeness in your documentation is key. At trial, you will be asked to account for any breach of protocol, errors, or holes in your documentation.
• Document facts/observations, not conclusions.
• Consider what else *could* cause the findings in your exam‐‐ at some point someone will ask you.
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Photography
Toxicology
Specialty Techniques
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TESTIFYING
Article 32 Hearing
• Congress mandates all cases with an eye towards a General Court‐Martial must first be investigated by an impartial Officer.
• Witnesses testify.
• Rules of Evidence (mostly) do not apply.
• Defense will have opportunity to cross examine you.
Article 32 Hearing
• Even if TC downplays the significance of this event, you as the professional witness must be as prepared to testify as if you were going to trial.
• A note on charting
• A note on photography
• A note on mistakes
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Disposition
• Referral of Charges to Court‐Martial
• Non Judicial Punishment
• Administrative Separation
Pre‐Trial Hearings/Motions
• You may be called as a witness for a pre‐trial hearing. Designed to admit or exclude evidence prior to trial.
– Medical Hearsay
– M.R.E. 412 issues (Rape Shield)
• Same level of preparedness as if testifying in trial.
Types of Courts‐Martial (3)
• Summary CM‐Max punishment 30 days, 2/3 pay x 1 month, reduction in rank. *
• Special CM (BCD)‐ Regardless of the number of offenses convicted, max possible punishment is 1year, BCD, 2/3 pay x months
• General CM‐Maximum Punishment allowable under the code, DD, Total Forfeitures
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Testifying at a GCM
• Your job, regardless of the type of witness you will be, is to teach the judge/panel about what you know, what you saw, what you did, etc.
Types of Witnesses:
• Fact Witness‐ You did the exam, and testify regarding that encounter.
• Teaching Expert‐Explains scientific or technical principles the court members need to evaluate the facts in this case
• Evaluator Expert‐Offers *opinions* on the facts of the case (e.g., are the findings consistent with the chief complaint)
Military Rule of Evidence 702Rule 702. Testimony by expertsIf scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
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Sentencing
• Even if you do not testify in the main portion of the trial, you may find yourself testifying at the sentencing phase.
– Long term health consequences of sexual assault and other mechanisms of injury
– Invasive nature of the exam
Separation Boards
• An alternate disposition to trial
• In addition to trial‐ If no punitive discharge was adjudged at trial. However there are limitations here.
Final Thoughts
• There are a lot of similarities between MJS and CJS its important for any professional to understand where the differences are however.
• Medical professionals can play an important role in the MJS, but first and foremost duty is to the patient not to the criminal justice system.
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Questions?
Sasha N. Rutizer
Fellow/Senior Attorney
National District Attorneys Association
National Center for Prosecution of Child Abuse