Saturday, June 30, 2018

Random selection produces all-male panel, acquittal in sex case

"Having a five-man panel is definitely not the answer."

Military sexual trauma support group founder Marie Claude Gagnon, commenting here on the acquittal of a military policeman on charges of sexually assaulting a female superior. Details here from the Canadian Press. The panel was randomly selected by an independent court-martial administrator under the standard Canadian process.


  1. Some general points.

    1. Over the years, through many sexual offense cases I have been happy to have females on the panel. About one-third seems to be the best mix (although that's based on anecdote not statistics or study). I generally have a fear of all-male panels. This is especially so in a system where there is an atmosphere of presumed guilt. When you order commanders and others to 'believe the victim' you are ordering them to presume guilt. Confirmation bias then sets in and your first job is to counter that in the courtroom. Female panel members, in my experience, are more likely to examine and pay attention to the facts of the case presented.

    2. When something goes wrong in a sexual offense case--an acquittal (note the presumed result of a guilty finding), the search begins for the offender: the judge gets blamed, the panel gets blamed, the prosecutor gets blamed, the investigators get blamed, the rules and statutes get blamed, and yes the defense counsel get blamed. In each of the post-trial blame games no-one seems to care about the facts. Surely, it can't be the fault of a lack of evidence-can it? So, having assigned blame, people set about changing the rules or the board on which the game is played. All the while the facts of the case are mostly ignored or if not ignored they are re-argued to suit the result required.

    I accept that an accused may be acquitted when he should not have been. When that happens, actually after every case, the players should conduct a self-assessment to be better next time. But I also believe that some are convicted when they should not have been. When someone is wrongly convicted the answer is quite simple, them's the rules we were just following the rules.

    To misquote Dickens, "[W]hat I want is, Facts, stick to facts Sir." Charles Dickens, Hard Times, at 1, Oxford World’s Classics, 1998. To further abuse Dickens--the system of military justice "has it’s roses and thorns." id. at 84. Perhaps the referenced trial was not a model of military justice (no G&S references please), and all was not rosy. Should we not however, look to the source of any perceived smell. Perhaps there was arum discoridis in the jury box and all was not roses. Perhaps the facts did not really support a conviction and the panel got it right. That's what the panel members were told to do were they not? They were charged to hear the facts and decide guilt or not guilt on the law without reference to outside influences and personal prejudices. We threw the decision to them to decide and now we are dissatisfied.

    A court-martial may not be purposefully “stacked” to achieve a desired result and officers, otherwise eligible to serve, may not be excluded [or included?] from service based solely on their [gender?]. See United States v. Hilow, 32 M.J. 439, 440 (C.M.A. 1991); United States v. Smith, 27 M.J. 242 (C.M.A. 1988)(female members selected because case involved sex crime); United States v. Crawford, 35 C.M.R. 3, 12 (C.M.A. 1964).

    And now for something similar: United States v. Riesbeck, 77 M.J. 154 (C.A.A.F. 2018).

  2. As the originator of this quote, I can assure you that my statement never implied that gender parity in court martial panels would, or could, alter a decision. I say it will make at ease male and female victims. It’s more victim centric. It aligns with the more inclusive practices advertised by the CDS. In the civilian justice system, panel is randomly selected within a pool where both men and women are evenly represented. Applying this process to the CAF court martial panel selection process is not taking into account the lack of female representation within our military. The military justice system was built to be adaptable to the military unique context. Lack of female representation is one of these unique contexts.


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