An 18-year-old girl complained that she had been raped by approximately four military personnel in an apartment. The allegations were thoroughly investigated by army investigators in conjunction with local police.
One of the military personnel was not identified by the complainant in a lineup, and medical examination and forensic evidence from the scene failed to corroborate the allegations against him, but he gave a statement admitting that he engaged in consensual oral sodomy and sexual intercourse with the complainant.
Sources revealed that within twelve hours of the initial report, military authorities had learned that the complainant had previously made a false report of attempted rape against military personnel and had been admitted to a mental hospital two weeks earlier suffering from an emotional unstable personality disorder, and had been classified with a mental deficiency handicap level of 80%. Further, it is possibly the factors which prompted the authorities not to prosecute and prompted the personnel to offer the complainant a summary court-martial on what would appear to be very serious criminal charges.
Primarily, the accused soldiers were held by the civilian authorities pending a decision regarding formal trial in the court, but were temporarily released to the army investigators for interrogation only.
Afterward, the man who admitted the crime signed a written waiver of rights generally corresponding to Miranda warnings. Later that day, he wrote out a statement in which he acknowledged that, together with five other soldiers, he had accompanied the complainant to the apartment with the intention of engaging in sexual activities. He contended that the oral sodomy was completely consensual on complainant’s part, but admitted that she had said no after a couple of minutes.
The man also stated that he did not take seriously the complainant’s verbal resistance to vaginal intercourse, but did leave the room when she pushed him away. A sworn oral interview was also conducted by army investigator.
After several days, the man was accused of wrongful use of marijuana, based upon urinalysis and other evidence. Even if the man exercised his right not to make a statement in that case, the charge was sustained. As a result, he was reduced in rank, given forty-five days’ extra duty and restricted for forty-five days.
After six months, the man was tried by summary court-martial. He was then convicted of indecent assault and sodomy by force without consent, and was required to forfeit two thirds of his base pay for one month, sentenced to fifteen days’ confinement and given an other than honorable discharge.
Upon his release from the army, the man signed an acknowledgment that he had been informed that he would be required to register as a sex offender in the state in which he was to reside and may be subject to criminal prosecution upon failure to do so.
Based on records, the notice of the man’s conviction of a sex offense was provided to the state board of examiners of sex crimes offenders. Following the board’s determination, the man was required to register and he was sent notice to appear in court.
The man therefore assigned attorneys with whom he appeared in court. At that appearance, his attorney took issue with the board’s determination that the man was a sex offender. The risk assessment hearing was then postponed to allow the man the opportunity to bring the proceeding to annul and vacate the determination of the board.
Sources revealed that the constitution and jurisdiction of the military forum is described in the military’s criminal code. As distinguished from general or special courts-martial, both of which consist of judges with legal training, a prosecutor and a defense attorney, a summary court-martial is conducted by a single commissioned officer who acts as judge, prosecutor and defense counsel insofar as such commissioned officer has the authority to call witnesses at the request of the accused.
Further, the accused has the absolute right to reject trial by summary court-martial, in which case a general or special court-martial will be convened. Even if a summary court-martial has the authority to try an army private for any noncapital offense, the punishment that may be imposed is limited and may not include death, dismissal, dishonorable or bad-conduct discharge, confinement for more than one month, hard labor without confinement for more than forty-five days, restriction to specified limits for more than two months, or forfeiture of more than two-thirds of one month’s pay.
Subsequently, the man’s attorney has premised his argument that the findings of a summary court-martial do not constitute a conviction for purposes of the act on the limitations on punishment and the lack of criminal due process. The man’s attorney also asserts that the summary courts-martial procedure is an informal administrative proceeding designed to address minor transgressions of military regulations.
The Supreme Court concluded upon the authority of congressional intent as expressed in the military’s criminal code, that there is no right to counsel in summary courts-martial but that military necessity and the option afforded the accused to demand counsel and elect a more formal judicial procedure in the general or special courts-martial satisfied due process under the constitution. The validity of a summary court-martial conviction is in no way impeached by the alleged procedural imperfections.
Moreover, given the express intent of the revisions to comply with federal requirements, it is also appropriate to consider the federal rulings in assessing whether the man’s conviction by summary court-martial is intended to fall within the legal definition of sex offense under an act, assuming all other conditions have been met.
However, the man’s conviction took place, and he was released from the military, having satisfied the conditions of his sentence, at least three months prior to the effective date of the modification. Prior to the modification, the law provided that sex offense included a foreign conviction to an offense for which a sentence to a term of imprisonment in excess of one year or a sentence of death was authorized in that jurisdiction irrespective of whether such sentence was imposed.
Even though the language was deleted from the revised ruling, in light of the previously-discussed limitations on the punishment available through the summary court-martial, clearly this legal requirement, effective on the date of the man’s offense and the date of his conviction, was not met in the case.
The court stated that the new legal definition is expressly made prospectively applicable. While the new ruling provides that some of the amended provisions of the law would be retroactive as to those persons who had not completed the sentence for arson imposed on the effective date of the new act, which provision does not appear to relate to the modification and, the man had completed his sentence on the effective date.
Consequently, even if the court finds that the man’s conviction by summary court-martial to offenses that include all essential elements of some of the crimes specified in the law, he is not subject to the terms of the revised ruling because his convictions predate the effective date of the act. As a result, the appeal to vacate and annul the determination of the board directing the man to register as a sex offender is granted based upon the board’s error of law as applied with him.
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