The grilling of a female U.S. Naval Academy midshipman, allegedly sexually assaulted by classmates, during an Article 32 preliminary military hearing could lead to changes in the way such hearings are conducted.
Susan Burke, the midshipman's attorney, told NBC News she “met directly with members of Congress on these reform efforts,” in light of the 30 hours of questioning, at times invasive with only tangential relevance to the case, her client was subject to over the week and a half long hearing.
The National Defense Authorization Act currently before Congress contains an amendment to the Uniform Code of Military Justice that would limit the purpose of Article 32 preliminary hearings to “determining whether there is probable cause to believe an offense has been committed and the accused committed the offense.”
Currently, there is no limit to the amount of time or scope of the cross-examination in an Article 32 hearing, which is similar to a civilian grand jury. In this particular case over the summer, the female midshipman who was allegedly assaulted was probed about details that included how wide she opened her mouth during oral sex and whether she wore underwear.
The amendment in the NDAA bill would also make it optional for a complaining witness to testify.
Burke, a well-known advocate for reforming the way the military prosecutes sexual assault whose work is the subject of the documentary “The Invisible War,” said her client’s experience was just the latest — and highest-profile — example of such harsh interrogations.
“The exact same thing this midshipman went through, scores have been going through that same type of abusive process. Shining a spotlight on it brought home what we were saying about all these problems," she said.
Rep. Jackie Speier, D-Calif., the co-sponsor of the House version of the Article 32 amendment to the NDAA, said she spoke with Burke for two hours after the female midshipman’s cross-examination.
“She is a rock star as far as I’m concerned,” Speier said of Burke. “She is a significant reason why all of this is happening.”
The House version of the NDAA is expected to be voted on Friday, in the hopes that the Senate can vote next week, per the chairmen of the House and Senate Armed Services Committees.
Attorneys for the two midshipmen — Eric Graham and Joshua Tate — facing courts martial for abusive sexual contact said Burke was more interested in drawing media and legislative attention to the harsh way attorneys cross-examined her in the Article 32 than in seeking justice for her client.
The defense lawyers have noted the female midshipman’s murky testimony, marred by inconsistencies and at times, an apparent reluctance to proceed — at one point during the trial she said she didn’t believe the two men were “criminals” and that she had gone along with the hearing to find out if they had in fact raped her — rather than to convict them of something she believed they had done.
“[Burke is] trying to use this case to further her political agenda, which is not really about representing the accuser in this case, but furthering her lobbying effort, her crusade to have military sexual misconduct cases taken out of the military chain of command,” Chip Herrington, one of Graham’s attorneys, said.
The changes to the Article 32 proceedings would not change the way sexual assault cases work their way up the chain of command, which Speier called “the elephant in the room.”
Herrington and lawyers for the other accused midshipman, Tate, are participating this week in motion hearings at Washington Navy Yard, in which they will make a final appeal to a military judge to get the cases dismissed or failing that, to suppress certain evidence from being admitted. Graham and Tate will be tried separately and their courts martial are scheduled for January.
Burke and a team of lawyers from the firm Arnold & Porter are also presenting motions this week, including one to be allowed to “present legal arguments and assert [their client’s] rights.” Given that the accuser is not a party to the government’s case, but rather simply a “complaining witness,” the accuser’s independent counsel is currently not allowed to present arguments.
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