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putz said:Alcohol is not a defense. Issue I take with that statement is a lot of these "alcohol consent" cases never even the inside of a court martial. There is nothing worse than having to sit across from a victim FACE TO FACE and have to tell them that charges are not proceeding due to the relative low probability of conviction. I was really hoping that when decision like that were being made it was the JAG that would have to tell the victim, in person, that fact. Additionally, when charged and convicted under NDA 130 you face a criminal record. Take that same charge and plead it to a conduct and nothing. Take it civy side and plead the Sexual Assault to and Assault and Criminal Record. Honestly you could of committed a sexual assault in the CAF and face not repercussions other than administrative. For the argument that is enough than also consider that if I walked into Joe Civies workplace and arrested him his employer could fire him on the spot. Sexual Assaults, should NOT ever see the light of a Court Martial UNLESS it was a deployed operation and NDA 130 is the only means of proceeding.
I'm surprised that no one has focused in on ONLY 17 in the that three year period seeing as how many were investigated and sent for RMP review for sexual assault. I think a better gauge would be to find out how many were sent to JAG as a SA but came back recommending something else.
I apologize if I'm coming across as harsh but I am very passionate about Sexual Assault investigations.
You misunderstood entirely what I was saying. I wasn't arguing that alcohol was a defence. What I said was that:
Sexual assault cases are much more complex then that. When one deals with a stabbing or a shooting, then the requisite elements of the offence are fairly easily indicative of the fact that a crime was most probably committed. With a sexual assault there are the ever present complications that the act probably took place in a haze of alcohol and that, in many cases, it can be argued that the act was consensual and therefore not a crime.
The point being that a sexual act could be either a completely innocent act or it could be a crime. A judge has to work his/her way through a "he said/she said" situation in order to find out which side of the line the case falls on. On top of that the evidence is often less clear than one would like because often the parties were intoxicated to some extent.
The simple fact of the matter is that the legal standard to move a prosecution forward is one of whether or not there is a "reasonable likelihood of conviction" and the standard of proof for conviction is one of "beyond a reasonable doubt." It's a standard that has evolved over centuries under the simple theory that: "it's better for a hundred guilty persons to go free than for one innocent one to be convicted."
It seems to me that you are advocating that regardless of how weak or strong a case is it should be prosecuted in order to make the victim feel good. That, IMHO, is a very dangerous path to take. Besides the fact that we screw up a whole lot of innocent people by putting them through a trial where we know it won't lead to a conviction, all we'll end up doing is making our conviction rate look even lower than it is.
It's a bit silly to suggest that the JAG himself should tell the victim that. The JAG is separated from the Director of Military Prosecutions and the prosecution arm of the CF and I would expect that in any case where a complaint has been made that an explanation is provided to the victim by either the CFNIS/MPs (in the event that no charge is laid) or by the prosecutor (if a plea agreement is entered into or a charge stayed). That said, neither CFNIS/MPs or prosecutors need the victim's consent. Their actions are based on the rule of law and prosecutorial standards.
Much of the remainder of your comparison between the CF and civilian side is pure conjecture and most of that is baseless. I'm not saying that there isn't room for improvement--there almost always is--but your position flirts dangerously with the proposition that we need to make it easier to get a conviction so that the statistics look better.
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