Assume you are single, and are accused of committing sexual assault during a weekend celebrating with a group of friends in New York City. You return to work, and your employer, a government contractor, tells you, that as a result of the accusation, your work-essential security clearance has been pulled. You must report to your job every day, but since you have no clearance, you will receive no meaningful assignments, and must just sit at your desk. You were slated for a promotion, but it is held up by your employer pending results of the grand jury investigation and possible trial. They also hold up any pay increase. Because your employer paid for your specialized undergraduate education, and you are contractually obligated to work for them for 6 years, you cannot quit and move on.
Some months later, a grand jury is convened and hears evidence. Your lawyer asks the District Attorney to provide immunity to a witness who can provide testimony that will exculpate you. The District Attorney denies the request. Even without that evidence, the grand jury concludes there is not enough evidence to warrant a trial. This is reported to the District Attorney. He rejects this grand jury recommendation. Your lawyer goes to court making a motion that the witness be given immunity. This motion is granted. After another significant delay, the same grand jury holds another hearing, considering this new important evidence, and for second time recommends the case not go to trial. The District Attorney, with no explanation, again disregards their recommendation and orders his prosecutors to proceed with a criminal trial against you.
This District attorney gets to select your jury. In order for you to be found guilty, only 3 of the 5 jurors must agree on the verdict. If you are convicted, you could go to prison for 10 years.
You now face a trial that will be ugly and embarrassing, a public display of highly intimate sexual details about the night in question. Your trial does not start until over 4 years after you are accused. Are you getting a fair shake? Is this justice?
United States Air Force 1st Lt. Josh Seefried
Tragically, this is not a theoretical scenario. It is the reality faced by Air Force 1st Lt Josh Seefried, a 2009 Air Force Academy graduate. He is a cost analyst for the Air Force, stationed at a military base in the Washington, D.C area. This assignment requires a security clearance.
Seefried is also gay. He was the co-founder of an organization known as OutServe. This group of LGBT actively serving military members was critical in providing highly essential information and data used to accomplish repeal of the law previously known as "Don't Ask, Don't Tell" ("DADT"). Due to his leadership role at OutServe, and the publicity he and the organization received after repeal was implemented, he is arguably a public person. Because of the important role he played in the repeal of DADT, Seefried likely has enemies within the military and without.
Another gay officer, a Marine 1st Lt, accused Seefried of sexual assault during the annual Fleet Week in New York City in 2012. The Marine claimed Seefried committed this assault after a day of drinking and partying with a group of gay officers. He contends that same evening, Seefried, without his consent, touched him, performed oral sex on him, and also may have penetrated his anus. Seefried denies these allegations.
Because of where Seefried is stationed, he falls under the legal jurisdiction of the Air Force District of Washington ("AFDW"). The Commander of AFDA is Major General Darryl W. Burke. As such, in the military justice system, Burke has immense legal power as the Convening Authority. An analogy could be drawn between Burke's authority and that of a civilian district attorney.
Burke was the one who ordered an Article 32 Hearing. An Air Force officer, a member of the Judge Advocate Corps("JAG") who is an experienced lawyer, usually conducts this hearing. He is mandated to conduct a comprehensive evaluation, considering all the evidence and taking testimony. This is much like a grand jury proceeding. Under the military system, a written report is prepared making a recommendation to the Convening Authority, stating whether there is sufficient probable cause to prosecute the accused. In Seefried's case, a highly respected JAG Air Force Colonel conducted the Article 32 Hearing. During this hearing, Seefried's attorney requested the Convening Authority grant immunity to a co-accused to allow him to provide exculpatory testimony. General Burke declined. After the first report was submitted recommending no court martial, General Burke rejected the conclusion. Seefried's lawyer, made a motion before the military judge to grant his co-accused immunity. The motion was granted, and a second Article 32 was ordered. The same Colonel conducted the second hearing. Considering new evidence from the now immunized co-accused, that arguably exculpated Seefried, the second report was submitted even more strongly recommending no trial. Why did General Burke again overrule this recommendation of this highly experienced lawyer and order 1st Lt Seefried to proceed to General Court Martial?
Shortly after he was charged, Seefried's Secret clearance was pulled. Because of the nature of his assignment, dealing with highly sensitive information, he could no longer carry out his duties. Rather than find him a position not requiring a clearance, his commander ordered him to report to work every day and sit at his desk. Because he could not function, his annual Officer Performance Report suffered tremendously.
Seefried had been selected for promoted from 1st Lt to Captain. Inexplicably, the Air Force held up his promotion and withheld the pay that accompanies this elevation in rank.
Until his General Court Martial began on August 22, 2016, this was the professional "life" of Lt Seefried. Regardless of the outcome of that trial, Lt Seefried's promising military career has been destroyed. As a result of mere allegations, he has lost 4 years of his professional life, not to mention the respect of both superiors and subordinates and the psychological trauma he has suffered by this ordeal
All of these consequences stem from General Burke's decision to proceed against Seefried after recommendations by the Article Hearing officer not to go to trial, not once, but twice. Is this right? Is this justice?
Sexual assault in the military is endemic. It is a very serious offense that must be unequivocally addressed and dealt with. The way Lt. Seefried's case has been handled by the Convening Authority, does not accomplish this end. General Burke is not alone. The history of the past several years shows that in sexual assault cases, Air Force Convening Authorities typically reject any recommendation not to go to trial. Rather than exercising their prosecutorial discretion, these Generals take the easy road, trying all cases alleging sexual assault. Is this not an assumption of guilty until proven innocent and punishment before trial? Does that not fly in the face of the core principal of our criminal justice system?
By effectively ruining the career of the accused, even before he has had his day in court, the course of action pursued against Seefried has been completely counterproductive. It detracts from confidence all service members must have in the military justice system. This saga is not just a personal tragedy for Lt. Seefried, but diminishes the reputation of the United States Air Force and is an insult to every American's sense of justice and fair play.