Sunday, June 4, 2017

A British Army court-martial, compared (Part 1)

BBC News reports:
British Army officer found not guilty of Uganda hotel rape, 31 May 2017.
Brig Paul Tennant, the president of the board, said: "Despite unanimously and overwhelmingly reaching a finding of not guilty, we have been similarly united in our corporate embarrassment by the conduct of the defendant.  "We as commissioned officers feel strongly that Lt Col Tomkins' behaviour, even by his own account, fell wholly and demonstrably short of what we would expect of an officer of his rank and experience.  "This failure goes well beyond the fact of his infidelity." [1]
A comment on an accused's boorish and unofficer-like behavior would not be heard in open court in a U.S. court-martial--very different.  This difference leads me back to the beginning of why I am now commenting.  The case became of interest to me and friend and colleague because part of the trial was held at Andrews Air Force Base, Maryland, US.--so friend DHS and I attended a day of the hearing We wanted to gawk and compare.  The complaining witness was a U.S. Air Force officer.

There are two broad takeaways.
  • The facts of the case are quite similar to those presented in a U.S. court-martial. Two people having a convivial time drinking and socializing, followed by sex, followed by one alleging that the sex was against her will and was rape. In the U.S. we now tend to refer to such a case as a "drunk sex" case. You frequently see similar facts and circumstances develop during a U.S. court-martial.  The difficulty of prosecuting and defending a drunk sex case are illustrated in United States v. Pease, 75 M.J. 180 (C.A.A.F. 2016), and see  (Note: we were not able to see the "instructions" given by the judge on this issue. Anyone have them for comparison?)
  • It was the overly formal practice of the British court-martial that was different--very formal compared to the relative informality of a U.S. court-martial. The actual presentation of evidence was the reverse and was much less formal compared to what we experience and practice. I must caveat the comments to come later with an obvious observation that we know next to nothing about how a British court-martial trial is conducted nor the rules of practice and procedure that apply. Think of us as two men off the street wandering into the trial to gawk.  We can only wonder how a British practitioner would view one of our own trials.
[1] More high-ranking officers being charged with sex crimes against subordinates, Craig Whitlock, The Washington Post, 19 March 2016.
[2] Alcohol and Sexual Assault, Antonia Abbey, Ph.D., Tina Zawacki, M.A., Philip O. Buck, M.A., A. Monique Clinton, M.A., and Pam McAuslan, Ph.D.  Nat. Inst. on Alcohol Abuse and Alcoholism, Nat. Inst. of Health.

To come:

The formality compared.
The informality compared.
Some further stream-of-consciousness observations.

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