New Presidential Executive Order Proposed by Pentagon Strips Victims of Their Privacy

Last Friday, President Obama signed an Executive Order amending the Manual for Courts Martial (MCM) that includes provisions that severely undermine essential protections for sexual assault victims in the military. This order ignores victims' privacy rights and delivers a huge blow to ongoing efforts by advocates and Congress to reform the broken military justice system.

The President's order substantially weakens the protections of Military Rule of Evidence 412 (MRE 412), the military's version of the "rape shield rule," which prohibits admission of evidence of a victim's prior sexual history and orientation unless ruled admissible by a military judge. Although MRE 412 is meant to apply only to courts-martial, this rule has been applied inconsistently, with many investigating officers (IO's) permitting consideration of such evidence during Article 32 hearings. Victims' advocates like Protect Our Defenders have been fighting to eliminate the de facto admission of this evidence during Article 32 hearings in an effort to protect victim privacy and to ensure that trained military judges alone have authority to make decisions on admissibility at trial.

Protect Our Defenders Board of Directors Member and Tailhook Whistleblower Paula Coughlin, has launched a petition calling for the President to rescind the portions of the Pentagon backed Executive Order he signed that undermine basic privacy protections for victims of sexual assault in the military.

The President had an opportunity to strengthen MRE 412 protections and eliminate inconsistencies by clarifying that MRE 412 evidence was only admissible by a military judge during a court-martial. Instead, the order signed by the President explicitly allows a victim's prior sexual history and orientation to be brought up in Article 32 hearings and, even if ruled inadmissible by an IO, mandates that such evidence be presented to the Convening Authority (CA) as s/he determines whether to refer the case to court martial. We have already seen that CA's can be swayed by irrelevant evidence--in the Wilkerson case, General Franklin (the CA) justified overturning the perpetrators conviction by referring to evidence that was ruled inadmissible by a judge. Apparently, the lessons of that case have already been forgotten.

This change ignores key reforms passed by Congress to protect victims of sexual assault, and is inconsistent with the civilian justice system. In the FY 2014 National Defense Authorization Act (NDAA), Congress explicitly defined Article 32 hearings as probable cause hearings, as opposed to investigations, in order to protect victims from irrelevant, abusive and intimidating questioning. In analogous pretrial proceedings in the civilian justice system, the accused does not have the right to bring up a victim's prior sexual history or orientation.

The White House moved forward, with this Pentagon led effort, despite serious concerns, raised by Protect Our Defenders. Neither the White House nor the Pentagon has yet provided any justification for these changes,

A victim's prior sexual behavior is completely irrelevant to determining whether there is probable cause in a case of rape or sexual assault. Sexual assault is already one of the most underreported crimes in the Armed Forces, and attorneys for the accused seek to introduce evidence to humiliate, intimidate and dishearten victims so that they will refuse to go forward to trial. In order to encourage the reporting of sexual assault throughout the ranks, victims must believe the system will protect them throughout the process. Weakening protections of privacy indicates to our troops that reporting a sexual assault will likely cause undue embarrassment, hardship and emotional trauma, and chill victims' willingness to report and participate in the criminal justice process.

Last year, President Obama told victims of sexual assault in the military, "I've got their backs." Today, Protect Our Defenders is calling on President Obama to honor that promise and rescind the portion of the Executive Order allowing evidence of victims' prior sexual history to be admitted at Article 32 preliminary hearings. The president must stand by his word.

You can also make your voice heard by joining with survivors, their family members and victim advocates and signing Paula's petition asking the President to rescind his Pentagon backed Executive Order.