Category Archives: Legal Analysis

Worth Knowing in the Dylan Farrow Case: The Actual Risk of Suggestibility With Children

Tom Lyon, A law professor at the University of Southern California, has a remarkably valuable dual background when it comes to legal child protection: He’s both an attorney and a psychologist. Among the most influential contributions he’s made is this article, plainly titled “Let’s Not Exaggerate the Suggestibility of Children.”

In a child sexual abuse case, suggesting the complainant was either coached to adopt fantasy as reality, or simply did so out of confusion between the two, is a popular defense tactic. It’s particularly attractive because it doesn’t involve judging the victim or accusing her of lying.  She can be viewed as, in a sense, as much a victim as the state is claiming, but in an entirely different way.

This has, not surprisingly, been suggested over and over again regarding the allegations made by Dylan Farrow, adopted daughter of Woody Allen. Countless observers, and indeed Allen himself, have suggested that Dylan is not a devious liar, but instead a sad pawn, indoctrinated to believe a false memory in the context of a vicious divorce and custody battle.

For this reason, it’s important to understand what respected research has to say on the subject of- in fact- how suggestible children are. I’d encourage you to read the article itself if you’re interested; it’s written for a general audience and not dense or jargon-filled. But in a nutshell, here’s what the research reveals:

1. Very young children (3 and 4, which is about as young as a child can be forensically interviewed except in exceptional circumstances) can be led to adopt false memories or incorrect versions of events. But this only occurs after extreme efforts such as a very long passage of time between the actual event and the interviews, and repeated interviews over time with constant introduction of false memories. And even with these efforts, a majority of these same, very young children will maintain the actual version of events and resist efforts to conflate fantasy and reality.

2. The danger of children conflating fantasy and reality drops off sharply at around 5 or 6 years of age.

3. By the age of 10, children meeting normal developmental milestones are no more susceptible to adopting false memories than adults.

Even more interesting: The first research done on children and susceptibility (often called the “first wave”) was done by respected psychologists, but also child protection advocates and researchers who believed children were not nearly as susceptible as popular culture largely accepted. The so-called “second wave” research was conducted by equally respected psychologists who thought the first-wave researchers were being too rosy in their assessments and set out to demonstrate that children can be made to adopt incorrect or even wholly false versions of events if efforts are strong enough. They succeeded, but generally with extremely young children and through efforts that are virtually unheard of in child abuse cases. 

The bottom line is that yes, mostly toddler-aged children can be led to adopt false memories with repeated, methodical, and highly suggestive attempts to confuse them after a considerable amount of time has passed between the event and the repeated interviews. But even with these tactics, a majority of children will still maintain a a correct version of events.

Dylan Farrow was seven when she allegedly endured what she clearly describes now, at 28, as sexual abuse at the hands of Woody Allen. Describing her as a liar and a willful tool of her embittered mother even after 21 years is arguable, as it always will be. Anyone can lie, and some can lie very convincingly.

But claiming that she was simply, easily and permanently led to create a false memory- at the level of detail she now relates- is a claim utterly unsupported by the very best research on the subject, about half of it conducted by skeptical researchers suspicious of children’s abilities.

Those who believe Allen is innocent may be right; I will never know and neither will they. But neither they nor Allen himself have a right to claim that Dylan was easily confused and now sadly tied to that confusion. To believe Allen is innocent is, in all likelihood, to reject the detailed account Dylan has given, and to reject her as a liar; the worst kind.

Period.

 

 

Proposed Changes to Military Preliminary Hearings: Reasonable, Easily Implemented, and Sorely Needed

While I believe Congress should pass the Military Justice Improvement Act, there’s a far more easily implemented change being urged on the President that should meet little resistance. But even it is considered “radical” in some military circles. Recently, a Navy Times article focused on proposed changes to Article 32 hearings, which under the Uniform Code of Military Justice operate like preliminary hearings in civilian systems. The “32,” as JAGs typically refer to it, is a less formal hearing where evidence is presented to a neutral investigating officer. That officer then makes a recommendation about the case to the Convening Authority, that is, a commander (usually a general officer) who then makes the final decision as to whether the case is “referred” for court martial.

The changes- implementable by the President- are being proposed specifically for the enhanced protection of complainants in sexual assault cases; the need for them became apparent to reformers particularly after the exhausting, multi-day examination of a Naval Academy midshipman involved in a rape case against three classmates late this summer. The changes are sorely needed, in least in terms of how Article 32 hearings often play out in sexual violence cases, and they are eminently reasonable. 

Yet the language used in the article is perhaps a measure of how concerning any change to the military justice system is to insiders. The reporter describes the proposal as a “major reform” and a “radical overhaul” of the process. It is neither.

The officer who presides over the Article 32 hearing listens to evidence, prepares a summary of the testimony, and gives recommendations for disposition to the Convening Authority. At present, there is no requirement that the investigating officer in an Article 32 hearing be a military judge. Or a JAG. Or someone with any legal training at all. The I.O. can be simply another officer uninvolved with the case, meaning a company commander in an artillery brigade, a signal corps officer, or one of any other specialty.

For many UCMJ offenses,  this is not a matter of concern. The idea of the Article 32 hearing is to allow for a neutral party in the officer corps to consider the matter before a commander at a much higher level considers whether to convene a court martial around it. That officer doesn’t have to be legally trained, in many cases, to competently consider facts and listen to witnesses.

But sexual assault cases are unique and difficult to adjudicate fairly. This is particularly true when they involve (as they almost always do) circumstances like parties known to each other, alcohol consumption, or counter-intuitive behavior like delayed reporting or post-assault communication. Aggressive defense attorneys, bound by ethics to defend their clients zealously, can and do sometimes take advantage of both the relative informal setting and legal inexperience of the I.O. to ask questions of complainants that would not be permissible in a court martial.

In the extreme, this can amount to a strategy of harassment in hopes of improperly discouraging a victim from continuing with a prosecution. Certainly not all defense attorneys plan this kind of legal attack, but without an adjudicator that is familiar with the limits of the law, aggressive and improper questioning can go unchecked even when prosecutors object. I.O.s can seek legal assistance during an investigation, but they don’t have to. Further, defense attorneys may actually outrank both the prosecutor and the I.O, adding a further complicating dynamic. Senator Boxer and co-sponsors (Senator Blumenthal and Congresswoman Speier) are asking the President to formalize the Article 32 process so it mirrors more closely preliminary hearings in Federal courts. This is not too much to ask.

I’ve been told by JAG friends in other services that military judges are regularly utilized to oversee Article 32 hearings. My observation of the Army process though, was much different. I personally never saw a military judge assigned to an Article 32 hearing, and knew of only one or two cases when a JAG presided over one.

Military-wide, the process should be tightened to guarantee that justice for both parties is best approached, and in exactly the way that American criminal procedure provides: By guaranteeing that legally trained professionals who know the rules will also enforce them.

MJIA: The Right Approach to Military Justice with the Right Kinds of Cases

iStock military justice

C.S. Lewis, in the character of a demon in The Screwtape Letters instructing a protege on how lead men to Hell, notes that murder is no better than cards, if cards will do the trick. Lewis was talking about sin, of course, and which ones could successfully separate a person from God. But a limited analogy can be drawn between Screwtape’s analysis and the subtle circumstances that can thwart criminal justice. Cynicism, perfidy and incompetence are all well-known enemies; players in the system influenced by these will fail victims and their community. But there are also more subtle, even inadvertent circumstances that can hinder justice as well.

In almost three years as a civilian expert with the Army JAG Corps, I encountered almost exclusively highly competent, honorable and devoted trial lawyers both prosecuting and defending criminal cases. I also largely found commanders- the decision makers within the military system- to be fair-minded, conscientious and decent.

Still, at least in terms of how the concept of criminal justice is viewed in the civilian world, I saw systemic aspects of military justice that, despite best intentions, somtimes stand as impediments to the kind of justice we expect in response to serious crimes. These are best confronted by Senator Kirsten Gillibrand’s Military Justice Improvement Act.  

Military expedience and deference, in particular, can have unintended negative consequences, at least in the cases I consulted on, which included rape, assault and murder. Expedience is demanded in the court martial system given the common exigencies of military life. There must also be great deference, not only to individuals of higher rank, but also to the institution itself.

These are not negative in and of themselves; indeed, they are important principles of an institution that must be cohesive, responsive and lethal. Service members willingly accept a lower value on individuality for the good of the institution. Being a part of the military is a very different experience from civilian life. Its justice system should and does reflect these differences.

But when it comes to felonies, particularly ones not instantly related to military readiness, it does not have to. That is the thrust of the Military Justice Improvement Act.

Under it, commanders, the men and women responsible for increasingly larger units within the ranks, can and will continue to have complete judicial authority where mission-specific crimes like desertion, insubordination, and espionage are concerned. What will shift, partially, will be the responsibility for deciding the merit for prosecution of more traditional felonies like sexual violence, murder and robbery. These crimes can certainly affect a unit’s readiness and cohesiveness, but they have a decreased relationship to military operations, and a profoundly different effect on victims. Traditional, often interpersonal crimes deserve an approach both 1) unhindered by the larger concerns of the command and 2) enhanced through handling by specially trained, unformed legal experts. Sexual violence in particular, given its utter uniqueness in criminality, demands this approach and thus has largely inspired it.

In the meantime, commanders will still have involvement over cases, including supervision of the accused and the victim during the process, and the opportunity to seek lesser disciplinary action in the event that a case is not referred for prosecution. We ask more from military commanders than ever before; the vast majority respond honorably and competently. But asking commanders, even with legal counsel, to make decisions about interpersonal crimes- particularly when inextricably burdened with concerns about unit effectiveness- is both unnecessary and potentially detrimental.

Where sexual violence is concerned, critics point to the willingness of commanders in most cases to pursue charges against offenders, and this is a fair point. But we only know about what is reported, and a major belief behind the MJIA is that the direct involvement of commanders in criminal justice decisions has a chilling effect. This is more than a hunch; it’s been gleaned from surveys, interviews and the accounts of service members over time.

The MJIA is not a panacea for sexual violence or other major crime in the United States military. But it is an idea far less radical than critics charge and worth implementing to bring one aspect of military justice- and only one- in line with that of the larger world.

Dr. Jo Ann Rooney, Navy Undersecretary Nominee, Has Made Sen. Gillibrand’s Point on Military Justice

I’d say that Dr. Jo Ann Rooney, the President’s nominee for undersecretary of the Navy, perhaps misspoke when she made the patently awful sounding statement “the impact [of judge advocates outside the chain of command making prosecutorial decisions in sexual assault cases] would be decisions based on evidence rather than the interest in preserving good order and discipline.”

Except that Dr. Rooney didn’t speak. The statement was written, as testimony, to the Senate committee considering her nomination. One would think that answers reduced to writing are a product of more coherent thought and willful expression than what is sometimes uttered, despite best intentions. Rooney chose, or approved of, these words, and frankly they sound shocking, at least to people who don’t view justice the way she appears to view it. In fact, it seems that Rooney views military justice the way many military commanders and insiders do, that is as a tool for commanders to maintain discipline and good order rather than an ideal unto itself.

I’ve written on this before and I’ve pointed out, in fairness, that the promotion of justice is the first of the three clauses that describe the purpose of the United States military justice system. But Rooney’s apparent attitude that justice is more of a tool toward the forging of a larger goal- the maintenance of a cohesive and lethal fighting force- is one I commonly saw reflected during my civilian service to the Army.

She has since back-tracked in a letter to chairman Carl Levin, saying that while commanders certainly need to consider evidence in whether to bring charges such as sexual assault, they also need to consider more than that, and include factors such as the impact on morale and discipline.

Small wonder this clarification served to alarm Gillibrand more, not less.

Rooney believes that prosecutors are, apparently, too narrowly focused on simply whether a crime was committed against one human being by another. “Prosecutors, in my experience, evaluate evidence with an eye toward whether a conviction is likely,” she said. “Commanders consider additional factors.”

I’m not sure what prosecutors Rooney is referencing. Prosecutors are not, despite this description, auto-piloted hammers who bring charges as long as a cold analysis favors a conviction. In fact, prosecutors at all levels do consider other factors like resources and the interest of the involved parties and the community.

But what civilian prosecutors don’t do, ideally and certainly structurally, is concern themselves with whether the prosecution of a wrongdoer might be best avoided because of its effect on a larger group as an organism or entity.

This is exactly what Gillibrand is correctly fighting to end once and for all: The understandable but potentially justice-adverse tendency that commanders have to consider factors unrelated to whether one individual committed a serious criminal offense against another.

Rooney also notes favorably that commanders have “non-judicial punishment options” in dealing with offenders. But the offenders that Gillibrand’s initiative targets are service members who are committing rape and felony sexual assault. Non-judicial punishment under Article 15 of the UCMJ involves relatively minor confinements, restrictions, extra duty, counseling, and other disciplinary measures in lieu of a court martial for minor offenses.

Gillibrand herself, in reference to Rooney’s original troubling statement, asked “in what world would you recommend that the decision to prosecute a serious crime….not be based on evidence?”

Indeed, I’d follow up with, “in what world would you recommend non-judicial punishment for a felony sex crime?

Gillibrand’s proposed Military Justice Improvement Act does not disturb a commander’s ability to use non-judicial punishment for minor offenses, which means Rooney is either dreadfully misinformed or actually believes that NJP might be the answer to some cases of sexual violence, given the “other factors” she believes commanders should consider.

The supremacy of the individual observed in our culture is not one that can be similarly observed in military life. Many aspects of it involve compromising the needs of individuals for the larger health- and fighting ability- of the group.

But where justice, and a competent and effective response to sexual violence is concerned especially, the current system should be amended- reasonably- to do better. Dr. Rooney seems to make this very clear.