When a Convicted Rape Is Not Really A Rape: The Past, Present, and Future Ability of Article 120 Convictions to Withstand Legal and Factual Sufficiency Reviews

AuthorMark D. Sameit
PositionJudge Advocate, U.S. Marine Corps. Presently assigned as Trial Counsel, Legal Services Support Section-National Capital Region, Quantico, Virginia. LL.M., 2012, The Judge Advocate General's School, U.S. Army, Charlottesville, Virginia; J.D. 2008, College of William and Mary Law School; B.S., 2000, University of Virginia. Previous assignments...
Pages77-121
2013] ARTICLE 120 CONVICTIONS & LEGAL REVIEWS 77
WHEN A CONVICTED RAPE IS NOT REALLY A RAPE: THE
PAST, PRESENT, AND FUTURE ABILITY OF ARTICLE 120
CONVICTIONS TO WITHSTAND LEGAL AND FACTUAL
SUFFICIENCY REVIEWS
MAJOR MARK D. SAMEIT
I. Introduction
It is true rape is a most detestable crime, and therefore ought severely
and impartially be punished with death; but it must be remembered, that
it is an accusation easily to be made and hard to be proved, and harder
to be defended by the party accused, tho never so innocent.1
Sir Matthew Hale famously offered this quotation in 1680, and it
succinctly summarizes the difficulties Western societies have faced with
rape laws. On the one hand, rape is truly a detestable crime that can
leave lasting scars on a victim. On the other hand, a false accusation of
rape can leave equally deep scars on an innocent accused who faces jail
time and a lifetime stigma as a sex offender. This delicate balance has
led to a battle of ideas between victim’s rights groups and Due Process
advocates in crafting effective legislation to define rape as well as proper
rules of evidence to protect both the victim and the accused.
In large part, the victim’s rights groups have triumphed by redefining
nearly every state’s rape laws since the 1970s2 and securing passage of
Judge Advocate, U.S. Marine Corps. Presently assigned as Trial Counsel, Legal
Services Support Section–National Capital Region, Quantico, Virginia. LL.M., 2012,
The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia; J.D. 2008,
College of William and Mary Law School; B.S., 2000, University of Virginia. Previous
assignments include Legal Services Support Section, Combat Logistics Regiment 17, 1st
Marine Logistics Group, Camp Pendleton, California, 2008–2011 (Senior Defense
Counsel 2010–2011; Trial Counsel 2010; Defense Counsel 2008–2010); Aviation Supply
Officer, Marine Aviation Logistics Squadron 11, Marine Aircraft Group 11, 3d Marine
Aircraft Wing, Marine Corps Air Station Miramar, California, 2002–2005. Supply
Accounting Officer, Marine Aviation Logistics Squadron 36, Marine Aircraft Group 36,
1st Marine Aircraft Wing, Marine Corps Air Station Futenma, Okinawa, 2001–2002.
Member of the bar of the District of Columbia. This article was submitted in May 2012
in partial completion of the Master of Laws requirements of the 60th Judge Advocate
Officer Graduate Course.
1 1 MATTHEW HALE, HISTORIA PLACITORUM CORONAE: THE HISTORY OF THE PLEAS OF
THE CROWN 635 (1st Am. ed. 1847).
2 Jennifer McMahon-Howard, Does the Controversy Matter? Comparing the Causal
Determinants of the Adoption of Controversial and Noncontroversial Rape Law Reforms,
78 MILITARY LAW REVIEW [Vol. 216
specific federal rules of evidence to protect victims and prosecute alleged
offenders.3 The U.S. military has not been immune to these changes and,
in 2006 and again in 2011, Congress amended the Uniform Code of
Military Justice (UCMJ) to make rape and sexual assault offenses more
“offender centric” with less focus on consent and more focus on the
alleged offender. Despite significant changes to statutes and rules of
evidence, studies of jurors have shown that they are statistically no more
likely to convict offenders for rape under these new statutes than they
were under the old statutes.4 Researchers studying these puzzling results
have concluded that no matter how the statute is written, jurors will still
apply their own beliefs and experiences in judging a case; thus, legal
reforms will have minimal effects on conviction rates.5
One area unique to the military that has not yet been studied is how
rape and sexual assault convictions have withstood the UCMJ’s
requirement for appellate factual sufficiency review. The U.S. military is
unique in requiring service appellate courts to review cases for both legal
and factual sufficiency.6 This means that even if there are no legal errors
in a case, and the accused received a fair trial, the service-level appellate
court can still overrule the judge or the members and find that in their
opinion the government did not prove the case beyond a reasonable
doubt.7 This extraordinary power of the service appellate court cannot be
45 LAW & SOCY REV. 401, 402 (2011) (noting that nearly every state has removed
noncontroversial reforms, such as eliminating the resistance requirement, but more
controversial reforms have been slower to be adopted).
3 FED. R. EVID. 412–414 (generally, Rule 412 makes most types of victim sexual
predisposition evidence inadmissible; Rule 413 makes evidence of other sexual assaults
admissible against the accused in a sexual assault case; and Rule 414 makes evidence of
other allegations of child molestation admissible against an accused in a child molestation
case).
4 Ronet Bachman & Raymond Paternoster, A Contemporary Look at the Effects of Rape
Law Reform: How Far Have We Really Come?, 84 J. OF CRIM. L. AND CRIMINOLOGY 554
(1993); Donald Braman, Cultural Cognition and the Reasonable Person, 14 LEWIS &
CLARK L. REV. 1455 (2010); see also Marisa Taylor & Chris Adams, Military’s Newly
Aggressive Rape Prosecution Has Pitfalls, MCCLATCHY NEWSPAPERS, Nov. 28, 2011,
available at http://www.mcclatchydc.com/2011/11/28/131523/militarys-newly-aggres-
sive-rape.html (documenting the low conviction rate for sexual assaults under the
reformed sexual assault statute).
5 Braman, supra note 4, at 1462.
6 10 U.S.C. § 866(c) (2008).
7 This review is based solely on the record of trial. United States v. Turner, 25 M.J. 324,
325 (C.M.A. 1987).
2013] ARTICLE 120 CONVICTIONS & LEGAL REVIEWS 79
overruled by the Court of Appeals for the Armed Forces (CAAF)
because it lacks the power to review a case for factual sufficiency.8
This article analyzes all of the cases overturned in the U.S. military
from the year 2000 until March 2012 for a lack of factual sufficiency and
how the changes in the military rape law statute have affected the
likelihood a case will be upheld on appeal. Part II of this article analyzes
the evolution of sexual assault law within the U.S. military to its present
form. Part III identifies and categorizes the military sexual assault cases
that have been overturned between January 2000 and March 2012 and
explains the pertinent reasoning used by the courts. Part IV explains
why the 2007 and 2012 revisions of the military rape and sexual assault
statutes create legal uncertainty, but overall make it more likely that a
case will be upheld under a factual sufficiency analysis. While the
revisions of Article 120 have been a painful process for military justice,
the overall effect has been to create a statute that better withstands
factual sufficiency review at the appellate level.
II. Evolution of Sexual Assault Law Inside and Outside of the Military
A. Pre-World War II Rape Law
Interestingly, the U.S. Army did not develop any rape jurisprudence
during the first eighty years of its existence. The precursors to the UCMJ
were the Articles of War for the Army and the Articles for the
government of the Navy.9 When the Continental Congress developed the
first Articles of War in 1775, they approved sixty-nine enumerated
offenses; however, rape was not among the prohibited offenses triable by
a court-martial.10 This was not an oversight of the Continental Congress,
but an intentional decision to defer to the local jurisdiction to handle the
prosecution of all capital crimes, including rape.11 The Articles of War
mandated that the commander turn over an accused to the civilian
magistrate upon “due application” at the risk of harboring a fugitive
8 It can only review whether the service court applied the correct standard for factual
sufficiency. See, e.g., id. (announcing the standard of review for factual sufficiency).
9 WILLIAM T. GENEROUS JR., SWORDS AND SCALES: THE DEVELOPMENT OF THE UNIFORM
CODE OF MILITARY JUSTICE 11 (1973).
10 U.S. DEPT OF ARMY, THE ARMY LAWYER: A HISTORY OF THE JUDGE ADVOCATE
GENERALS CORPS, 1775–1975, at 12–13 (1975).
11 American Articles of War (1776), reprinted in WILLIAM WINTHROP, MILITARY LAW &
PRECEDENTS 964 (2d ed. 1920 reprint).

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