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December 21, 2009

God Help This Poor Man

... for he hath called our attention to That Which Must Never Be Uttered Aloud:

A US Army general in northern Iraq has defended his decision to add pregnancy to the list of reasons a soldier under his command could face court martial.

It is current army policy to send pregnant soldiers home, but Maj Gen Anthony Cucolo told the BBC he was losing people with critical skills.

That was why the added deterrent of a possible court martial was needed, he said.

The new policy applies both to female and male soldiers, even if married.

The male sexual partners of female soldiers who get pregnant would also "face the consequences", he said.

It is the first time the US Army has made pregnancy a punishable offence.

Cue the outraged shrieking about rights and privacy... as if male soldiers or Marines ever possessed the right to render themselves physically unfit for duty. While I heartily approve the even handed and equal application of military regulations, I believe Gen. Cucolo is tilting at windmills. He's dealing, after all, with a military leadership that considers active duty pregnancy so toxic a subject that it can only be dealt with by burying one's head firmly in the sand:

"We're definitely not tracking it," said a spokesman for U.S. Central Command, which runs the wars in Iraq and Afghanistan. "I've been attending operations briefings for two years, and I don't think I have heard once that pregnancy has come up."

Burying one's head in the sand seems to be a recurring condition whenever reality conflicts with the dictats of the more-than-equal rights crowd:

Dr. Sharfstein said that he would avoid an applicant 'like the plague' with this on his reputation.

The memo also mentions that Hasan blew off an important exam, was overheard proselytizing to his patients, only saw 30 patients in 38 weeks, when most see at least 10 times that much, and did not answer his phone when called for emergencies.

The memo reads that Hasan was

somebody who could potentially put patients in danger."

Dr. Sharfstein said that in all his time as a psychiatrist, he has only seen about six evaluations that were this bad, and he did refer to the memo as containing many warning signs.

DoD's refusal to study how pregnancies impact wartime readiness casts significant doubt on the assurances of those who advocate full female integration into the combat arms. They love to tell us that women's health issues (of which pregnancy has pride of place) have no effect (or only a negligible effect) on readiness:

In the past eight years, more than 2 million U.S. servicemen and servicewomen have served together in situations and for durations that have never existed in previous conflicts. Whatever issues remain to be resolved, the feared "disasters" did not materialize. There have been no epidemics of rape, no waves of "get me out of here" pregnancies, no orgies and no combat failures. In short, our men and women in uniform have behaved as military professionals.

Such blanket assurances beg an important question: if DoD isn't tracking deployment pregnancies, on what are these statements based? The facts we do have suggest the truth is otherwise. Interestingly, the Army has chosen to aggregate the statistics on female pregnancies in a way that ignores the effect on individual commands. Since women are not evenly distributed among military units, the result is profoundly misleading:

Women are an integral part of the Army today, comprising roughly 15% of the force and the impact pregnancy has on the unit’s readiness will depend upon how many females are assigned to that particular unit, and how many are pregnant and nondeployable at the same time. According to the Army, the numbers are predictable because the pregnancy rate at any one time averages 5-6% of assigned females, or less than 1% of the total force. Yet, as of 15 March 1998, 8% of females in FORSCOM were pregnant. The Army says the larger percentage is due to the higher number of entry-level female soldiers assigned to FORSCOM and its support units. For example, DISCOM units within FORSCOM typically have a larger proportion of females assigned than is representative of the Army due to the assignment policy restricting women from serving with units assigned a direct combat mission. The Army acknowledges the numbers will be greater at this level without acknowledging a corresponding impact to unit readiness.

Instead of trying to downplay the inconsistencies, the numbers should raise a red flag. A sampling of FORSCOM’s III Corps show an even greater percentage of pregnant and non-deployable females assigned.

Keep in mind a very important fact: at present women comprise only 15% of the total force, less than 1/3 of their numbers in the general population.

The goal of women's activists is to increase female participation and expand it from support roles to the combat arms - a goal they maintain will have no effect on military readiness. But a closer look at the statistics we do have puts the lie to that claim:

nondeployable1.jpg

The problem becomes even more alarming when male and female rates of non-deployability are compared across the services:

nondeployable2.jpg

If pregnancy were the only issue associated with fuller integration of women into the armed forces that would be one thing. But it is not. Rape and fraternization are other problems that dramatically increase when women are added to the mix. Advocates of greater female participation are enamored of anecdotal arguments, such as "I wouldn't do this, therefore it shouldn't be a problem" or "people who can't control their sexual urges can't be trusted with deadly weapons". As Lex's own anecdotal experience shows, however, women can and do behave in destructive and irresponsible ways that demonstrably impact unit readiness and morale.

Lex's experience aside, decisions about the use of women in the military should be driven by empirical data rather than competing and subjective narratives. His experience rings true, but there is a more objective (and harder to refute) case to be made here - one based on the aggregate behavior of men and women living in close quarters.

The problem, for women's advocates, is that the data don't add up in a way that supports their case for full integration of women into the armed forces:

Among the competing narratives put forward by the women in the military lobby, something does not quite ring true. The stories are diametrically opposed. If one is accurate it casts doubt upon the others and yet the proponents want us to accept them all at face value.

Either it is true that these women can defend themselves as well as men both verbally or physically (in which case they should be fully integrated into all branches of the military with no special accommodations) or they cannot even defend themselves against the depredations of some of their stronger male coworkers (in which case they require special protections if they are to be integrated, even in a limited way, into the armed forces).

Either it is true that men and women can bunk, shower, and defecate in close quarters without causing problems detrimental to the good order and discipline of the command, OR 4 in 10 women who live and work in close quarters with men are being raped and/or sexually harassed.

They can't both be true.

That is, unless Ms. Harmon doesn't consider rape detrimental to good order and discipline. She can't, unlike many feminists, have it both ways. She can't insist 40% of women are being raped and sexually harassed on the job, yet insist integrating women into the armed forces doesn't have a negative effect on command readiness. That just doesn't make sense.

She can't insist women are fully capable of defending themselves (much less taking the fight to the enemy), and then tell us they fragile flowers who require special protection from their own coworkers in order to be deployable. That just doesn't add up.

There is a basic truth here: laws that ignore human nature don't change human nature. Given that pregnancy is a preventable condition, there is no reason for female military personnel to become pregnant in theater. An aggravating factor is that most pregnancies that occur on a deployment are the result of fornication or adultery, two offenses already punishable under the UCMJ.

But this will not matter to those who demand equal rights without equal responsibility or accountability. They will continue to demand protected class status for women while illogically maintaining that women are interchangeable with male soldiers. If the data suggests - powerfully - that this is anything but the truth, the data will be disregarded or discredited.

Or in the case of female pregnancies it will simply not be counted, lest it reveal a truth we're not prepared to deal with.

Posted by Cassandra at December 21, 2009 08:46 AM

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Comments

I have a hard time with this one, no matter what the decisions are.

On the one hand, I know some truly amazing women in uniform who do the job, do it well on their own merits, and make our forces better by their inclusion.

And then I've seen some who... don't. To put it succinctly.

The same goes for those who happen to possess genital "outies" rather than "innies."

The difference, I think, goes beyond who can get pregnant and who can pretend they had nothing to do with the pregnancy. The difference is part of a larger societal problem in which a person is no longer responsible for their actions, and this goes doubly if a person is a member of a group that is seen as needing protection. Such as women (and I'm not even going to go there on "needing protection". It would be long and ugly).

One thing that infuriates me is the "they're going to do it anyway" argument. I don't see that as a viable reason against anything. The whole point is that there is a behavior that needs to be curbed - and the fact that some people will flout rules does not mean it should be OKAY to flout rules. This is true in nature - we all know donuts are bad for us. Yes, people will eat them anyway, and they will get fat. Nature doesn't recognize this argument, so why do we?

The "it's not fair" argument also irritates me to no end. No, it's not fair that women bear the brunt of pregnancy issues because the proof of parentage is easy to prove. It's also not fair that only men have to register for Selective Service and are not allowed to leave theater if they are expecting a child with a woman.

Life is not fair, we do the best we can.

So - what's the answer? I don't know. I wish I did. The ultimate answer would be people being responsible for their actions, and aiming for a higher standard in their behavior, but this isn't something we can legislate or order.

Posted by: airforcewife at December 21, 2009 10:48 AM

I don't think pregnancies are a reason to bar women entirely from serving. But I think that we need to begin treating pregnancy as a decision that has consequences.

So is shooting yourself in the foot. I wouldn't want to see people punished for getting pregnant in theater but I don't think it would be unreasonable to treat such a pregnancy as a dereliction of duty-type offense. And I think being involuntarily separated from the service (especially in the case of fornication- or adultery-induced pregnancies) is not an unreasonable consequence.

Posted by: Cassandra at December 21, 2009 11:40 AM

As someone who has commanded mixed-sex deployable units, and who had female soldiers deliberately get pregnant to avoid deployments (a small number - most women served as you would expect) I understand the horns of the general's dilemma.

When it's done on purpose, it *is* a self-inflicted wound that betrays one's comrades.

And in units like mine, where the females were low-density specialities, can punch real holes in unit readiness.

All of which applies to males, males just don't have that, oh, call it option.

One thing is certain - absent a form of rape, getting pregnant is entirely an optional event. And I can support going after the male soldier, too - just as horseplay in the barracks that gets someone shot is a chargeable offense, unlawful discharge is unlawful discharge - the male soldier made choices, too.

It's why military science fiction always defaults to some form of mandatory contraceptive concept...

Posted by: John of Argghhh! at December 21, 2009 11:48 AM

I wondered reading how the Israelis have handled this issue, as women have been fighting in the Israeli army a long time, and faced this issue before our military. I think. Also, how are the Brits managing the same problem? In addition, I wondered about unintended consequences. If rape is a crime primarily about rage at women, and power, rather than about sex, surely knowing that one could ruin the career of a female or rival or female officer one resented, by getting her pregnant, might increase crimes against females in the services. Much easier to hide an assailant's ID than a suubsequent pregnancy. You know that I don' t consider females pathetic weaklings, but still wonder..

Posted by: Retriever at December 21, 2009 12:10 PM

...surely knowing that one could ruin the career of a female or rival or female officer one resented, by getting her pregnant, might increase crimes against females in the services.

Just as simply accusing a male superior of rape or sexual harassment is currently an extremely effective way of obtaining revenge :p

If a female officer were raped and subsequently became pregnant, she would have a ready made defense: she did not consent to having sex and cannot (therefore) be held responsible for the resulting physical incapacity any more than a male who was severely beaten by his fellow soldiers or Marines would be held responsible for being laid up while he recovered from the beating.

Posted by: Cassandra at December 21, 2009 12:35 PM

All of which, given the number of false rape reports currently, makes me wonder if women who did become pregnant as the result of an entirely voluntary dalliance wouldn't have a very powerful incentive to cry "rape"?

Posted by: Cassandra at December 21, 2009 12:37 PM

All of which, given the number of false rape reports currently, makes me wonder if women who did become pregnant as the result of an entirely voluntary dalliance wouldn't have a very powerful incentive to cry "rape"?

...an incentive redoubled by this move to make their pregnancy a court-martial offense.

Next year's headline today: Rape of servicewomen spikes in northern Iraq!

Posted by: Grim at December 21, 2009 01:04 PM

My son's a Navy Chief. You should hear the stories about ships deploying short-handed because of pregnancies. Causes no end of reshuffling personnel to cover the voids.

Everybody knows about getting pregnant to avoid disagreeable duty. Nobody in the Navy will say a thing about it. After Tail Hook, the brass lost their will to fight Congress for sensible policies. Now, they make do and shut up about it.

Glad the Army has at least one guy who's not afraid to discuss the Emperor's New Clothes.

.

Posted by: joe doakes at December 21, 2009 01:20 PM

Here's a mess. Let's ignore it!

Contraception isn't perfect, accidents happen, life isn't fair, and drawing plans that it is perfect, they won't happen and it is fair are doomed. No plan survives contact with reality.

If you were to require that personnel submit (sealed?) notes to their command that they were having ... wouldn't work, just too many ways to game any such system. She tells command that she wants to get pregnant, asks that she be assigned to positions where such is allowable. If she is so assigned, there are only the "normal" problems to deal with. If she's not so assigned, command is taking part of that risk, and when she gets pregnant, command has to deal with her departure, but she's not blamable for it. There's going to have to be some kind of notice given or allowed for deployments, to allow for such notice to be done.

Still going to be a mess. Sausage making, law making, baby-making, command ... things that are always messy with no neat solutions.

Posted by: htom at December 21, 2009 01:20 PM

Yep. And when you stop to think about it, the problem is only compounded by the fact that it takes two to make a baby but only one of those parties faces any direct consequences from the failure to prevent pregnancy. It's not "fair" but it is the way the world works.

I love that this General is willing to go after the men involved, too. And I agree that such a ruling would increase the incentive to file (and quite possibly the incidence of) false rape reports.

But rape is a crime that requires substantiating evidence. Women don't get to just scream, "rape".

The thing is, if DoD were to require women to give up (temporarily) their ability to procreate as a condition of service, they'd be outraged. And frankly they'd have a point: men don't have to give up their ability to have children, and yet men are also sent home due to family emergencies that wouldn't exist if they didn't have kids and that impacts readiness.

It's a real problem, but when we're dealing with a disability that is preventable 99% of the time, I don't think it's unreasonable to hold people responsible for their choices.

Posted by: Cassandra at December 21, 2009 01:47 PM

re: Joe's comment.

I've been at two duty stations where the PC monster rears its head big time: Annapolis and Parris Island.

I've seen things that just boggle the mind. There are systemic problems everyone acknowledges, and yet no one can talk about them openly. One of the sources I read for this article talked about women's health issues and provided recommendations for dealing with those issues.

One of them made me laugh: take a bath or shower daily.

Like that's going to happen in combat? In Afghanistan there are guys who haven't bathed in weeks, and it ain't by choice.

Posted by: Cassandra at December 21, 2009 01:51 PM

,,,,From iPhone in field,,,,, I am currently an XO of a small unit and am 110% on board with the General. I would however expect to see him relieved by GEN Casey immediately if not sooner for such heresy!!!

Anecdotally, having had small unit command before, and in my current position, I concur with John of Arrrghhh, adding more arrrrrrrrrrghhhhh. As long as females (not all, not even many) see stomach mumps as a "Get Out Of The Suck" Option with no to little down side, they will be able to find a willing member with a fifth appendage to assist.

What happens when that male is NOT a US service member, but a civilian contractor, foreign allied SM or even a host nation national?

As stated, I am with the General on it, but it is a stinky sack of Shenobian sheep dung I hope I am not confronted with again.

Y'all play nice and keep everything in it's proper place!

Posted by: Kbob in katy(@SFO) at December 21, 2009 03:14 PM

But rape is a crime that requires substantiating evidence.

Not, I'd think, as a defense against a court martial for being pregnant. That is, the accused rapist is 'innocent until proven guilty,' so you may not have the evidence necessary to prove the case before a court martial. But I don't think your inability to prove it to a court martial would mean that you were automatically 'guilty' of consensual sex -- the physical standard of evidence to prove rape is pretty high, and there are long-accepted reasons why that evidence might not exist (e.g., the woman showered because she felt a strong psychological urge to 'get clean'). Some of these reasons are highly legitimate in real rape cases, but would make it easy for false-report rapes to be cloaked.

I can easily imagine a case in which a woman can't prove she was raped, and so the alleged rapist goes free; but the military can't prove she wasn't raped, so she goes free.

I pity the investigating officer, the JAG, and really everyone involved in such a case. It's going to be a hideous mess if it happens. The guy accused is going down for the G.O. #1 violation in any case; but the lady involved could escape both the pregnancy charge as well as the G.O. violation in this way. And no part of the investigation or trial would be fun for anyone at all.

Posted by: Grim at December 21, 2009 04:19 PM

What I don't understand--and this may be a naive question--is why female soldiers, at least those who may go on active duty, aren't required to get some sort of semi-permanent contraception on enlistment. Depo-Provera shots prevent pregnancy for up to three months at a time (and so I've heard, have the side-effects of stopping a woman's menstrual cycle). For those who can't use hormonal contraception (not everyone can--I can't, for example), the IUD is a non-hormonal alternative that is good for up to ten years. With neither of these is there any "forgetting" to take a pill or anything like that. Both of these are reversible as well--stop the shots or take out the IUD--so it's not like they would be forfeiting their childbearing capacity forever, just while they were in the military. It seems like an eminently sensible policy, and I honestly don't understand why this isn't done.

Posted by: colagirl at December 21, 2009 04:58 PM

I don't think your inability to prove it to a court martial would mean that you were automatically 'guilty' of consensual sex ...

Seems to me that if there's a policy in place that means your career will end/you'll face court martial if you get pregnant in theater and you're raped and you DON'T FILE CHARGES, the bulk of the evidence points to it having been consensual sex.

And it doesn't make sense to me that the man would get nailed for a GO violation but the woman would get off scot free, Grim.

Either it was rape or it was consensual sex. If you don't nail the man for rape, you're nailing him for consensual sex.

Which requires a partner.

Posted by: Cassandra at December 21, 2009 06:40 PM

I'll tell you another thing such a policy would do.

It puts the onus on women who decide on a military career to learn self defense skills. So that if a man tries to rape them, he would HAVE to do it by force (in which case all the evidence is there once she files charges). I actually do not have a problem with this.

If you're maintaining you are equally fit for a profession which by its nature involves the possibility of violence, you ought to be able to defend yourself. It may not be chivalrous Grim, but we're talking about circumstances where chivalry won't work. True independence and self reliance are called for.

And if you can't do that, you don't belong in the armed forces because you're a weak link. I can think of many women (including, quite possibly, myself) to whom that description easily applies. I can think of men to whom it applies. They generally don't make it through boot camp.

Posted by: Cassandra at December 21, 2009 06:44 PM

Cassandra,points taken. Especially about the self-defense skills. You and the other commenters are far more knowledgeable than I am, and increased false accusations are a problem. I am probably too focussed on unintended consequences generally....
Colagirl's suggestion was pretty good, tho there would perhaps have to be an optout for people with religious objections? Little Miss Attila had some funny remarks on the same subject...

Posted by: retriever at December 21, 2009 07:59 PM

I am probably too focussed on unintended consequences generally....

No, I thought your points were thoughtful and well taken. That's why I have always loved talking to you guys. We don't always agree but you all bring up good points, often ones I either hadn't thought of or was too quick to dismiss.

Posted by: Cassandra at December 21, 2009 08:06 PM

perhaps have to be an optout for people with religious objections?

Years ago I wanted to be in the military but faced up to the fact that it would be wrong for me to enlist b/c for me, my family and children would always take precedence.

I don't see any difference with religious objections, personally. I think either you are willing to do the job the way it should be done, or you aren't. If you aren't that's no ding against you but you shouldn't expect others to take up your slack.

And that's what happens when people choose to get pregnant on active duty - others are forced to pick up their slack. I don't think it matters whether this happens b/c of carelessness or religious conviction. Either way, you must face the tradeoffs inherent in your choices. You have no right to force others to.

Posted by: Cassandra at December 21, 2009 08:09 PM

"You" being a generic term, of course :)

Posted by: Cassandra at December 21, 2009 08:10 PM

Seems to me that if there's a policy in place that means your career will end/you'll face court martial if you get pregnant in theater and you're raped and you DON'T FILE CHARGES, the bulk of the evidence points to it having been consensual sex.

No, that's not quite what I was getting at. What I'm getting at is burden of proof.

In order to convict a man of rape, I need to prove beyond a reasonable doubt that he raped someone. Right?

Now, let's say I fail to do that. So now the woman is before the court. But now burden of proof is on her side: I have to prove that she wasn't raped. And it's just as unlikely I can do that, as that I can do the other. Burden of proof is hard, and for a good reason.

So it's highly likely that you could fail both to prove the rape, and to prove the not-rape. The JAG could easily lose both cases.

Now, as long as the woman claims there was rape, even if it's unproven in court, she has a defense against the charge of 'willful pregnancy.' If you can't prove she wasn't raped, you can't convict her -- even though you couldn't prove she was, either. Since she's claiming rape, though, she's also free and clear of the GO #1 violation.

The man, on the other hand, has no 'free and clear' defense available. There's a pregnancy, and therefore a paternity test. So, if he claims he is guilty of consensual sex, that's a GO #1 violation. But it's also his only defense against the claim it was rape, which is a more serious crime.

Now, since the man is in fact guilty, I don't have a problem with the fact that he's going to take the hit for the GO #1 violation. I do, though, think the incentives point strongly toward claims of rape.

All that means is that we need to watch to see if this part of Iraq does indeed experience a 'spike' in reported rapes. If it doesn't, then that will be a strong indication that military servicewomen are not particularly given to filing false reports. If it does, then we know otherwise. That seems like something useful to know, all the way around.

Posted by: Grim at December 21, 2009 08:36 PM

So now the woman is before the court. But now burden of proof is on her side: I have to prove that she wasn't raped.

I disagree. You are accusing her of failing to prevent a pregnancy.

You only have to prove that she had a duty not to become pregnant (not hard) and that she failed in that duty.

Her defense (for which SHE, not you, bears the burden of proof) is that she should not be held responsible b/c she was raped.

Certainly as the prosecutor you might wish to rebut her evidence that the sex was non-consensual. But it seems to me (and I could be wrong) that you can't just assert a defense and then say, "Trust me - no evidence necessary". Now I will admit that there may be a difference evidentiary standard for asserting a rape defense from that required to sustain a rape conviction.

we need to watch to see if this part of Iraq does indeed experience a 'spike' in reported rapes. If it doesn't, then that will be a strong indication that military servicewomen are not particularly given to filing false reports.

Or perhaps only that the perceived risk/reward calculation for filing a false rape claim changed?

Posted by: Cassandra at December 21, 2009 09:10 PM

First of all, the article misses one major point: getting pregnant while in theater was already punishable under the UCMJ (Art. 92, Failure to Obey a Lawful Order, and Art. 134, Conduct Prejudicial to Good Order and Discipline, plus Art. 115, Malingering, if you can prove they did it intentionally), and thus, potentially, a Court Martial offense. This is not new. Deployed female soldiers who got themselves knocked up - and the male responsible, if he was identified - have been receiving Article 15s, with the female being sent home, for years, going all the way back to the Balkan operations of the 1990s. I'd venture a guess that this made news either because the general involved pissed someone off, or possibly that some cub reporter just discovered that ANY violation of the UCMJ is a potential Court Martial.

It's the getting sent home part that is the primary reason for the punishment. The female soldier, and her male accomplice, have, either willfully or through neglect, made necessary the removal of that female soldier from the theater of operations, leaving her unit short handed, thus placing her fellow soldiers at increased risk. The effect is the same as if she had shot herself in the foot, and it doesn't matter if it was done on purpose or through negligence.

(Yes, rape is a different case; but in the absence of hard stats, I'd be willing to bet that the number of pregnancies due to rape in theater is a very small number of the (unknown, becaue they don't want to know) total number.) I'd also bet that the use of rape claims to avoid getting in trouble for getting pregnant would be pretty small - for the simple reason that, if you're getting busy over here, people know. If SPC Susie tries to make that claim, the command would probably be able to produce a chain of witnesses to the fact that she and SPC Bobby had been getting busy for the last couple of months.

And even stateside, pregnant female soldiers can be a drag on their units. Pregnant drill sergeants get pulled off the trail. Pregnant MPs can't do patrol duty. Pregnant paratroopers can't jump. They can't lift heavy things, or work around nasty chemicals, or fire weapons. They really can't do anything besides paperwork (although I'd agree that some of that is due to skittishness on the Army's part). Luckily the Army always has lots of paperwork.

Posted by: Heartless Libertarian at December 21, 2009 09:57 PM

You are accusing her of failing to prevent a pregnancy.

That is a hell of a charge to prefer against a young lady.

Leaving that aside, though, I'm not doing so: her defense of rape is not something she has to prove, but something that I have to disprove.

The reason is that rape is an affirmative defense against the charge of willful pregnancy. All she has to do is testify, under oath, that the pregnancy is the result of rape. Unrefuted, her sworn testimony is adequate evidence to decide the case in her favor.

I must, then, counter that with enough evidence to show that she isn't speaking the truth. That means the burden of proof is on me.

As it should be. The incentive structure is secondary; justice requires that a soldier's word, in the absence of clear evidence to the contrary, should normally be considered good.

Posted by: Grim at December 21, 2009 10:05 PM

That is a hell of a charge to prefer against a young lady.

Why? And what does being a lady have to do with being a soldier (which is the context in which she is being accused)?

As to the burden of proof, under the UCMJ it is not sufficient to simply assert an affirmative defense with no further proof. This is from (ironically) a rape case where the accused raised an affirmative defense:

Congress defined the term “affirmative defense” as “any special defense which, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly, or partially, criminal responsibility for those acts.” The statute further provides that “The accused has the burden of proving the affirmative defense by the preponderance of the evidence.

So it appears to be as I said (unless I'm missing something, which may well be the case). The original burden of proof for an affirmative defense lies with the party raising the defense.

If - and only if - they meet their burden of proof (which, as I admitted earlier could be lower), THEN the burden shifts to the prosecution to show that the defense is invalid (by a higher burden):

After the defense meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist.” 10 U.S.C. § 920(t)(16).

Of course I'm not a lawyer and know even less about the UCMJ. I was curious, so I looked it up. I may have this all wrong.

Posted by: Cassandra at December 21, 2009 11:02 PM

Heartless Lib:

Good points :p

Posted by: Cassandra at December 21, 2009 11:05 PM

What happens when that male is NOT a US service member, but a civilian contractor...

We're subject to the UCMJ, too. We're also subject to host nation laws, which make things interesting at times.

...foreign allied SM or even a host nation national?

"Visiting" with either is one of the prohibitions in good ol' General Order Numbe One -- GO1 ain't just about "you can't have a drink"...

Posted by: BillT at December 22, 2009 12:07 AM

...we need to watch to see if this part of Iraq does indeed experience a 'spike' in reported rapes.

Well, I'm *in* this part of Iraq, but I'm not privy to reading the police blotter. In the past two years, I've heard of one rape and one attempted rape in-or-around the FOB, and both involved TCNs (Third Country Nationals).

Posted by: BillT at December 22, 2009 12:33 AM

Sworn testimony counts in terms of establishing preponderance of evidence. If all the court has is her word versus his, that should be all right. If they also seize her emails and discover that she was chatting him up for a month, and suggesting they should slip off somewhere sometime, then she's in trouble.

...And what does being a lady have to do with being a soldier?

The same thing it has to do with being anything else. It's First Nature, to put it in Aristotle's terms; everything else, including choosing to be (or not to be) a soldier, is Second Nature at best.

Posted by: Grim at December 22, 2009 05:34 AM

VERY slippery slope. Does this apply at all times? Does a married service member need to commit to remain childless during their entire enlistment? Does it apply only while deployed? What if they become pregnant while on leave from deployment?
That said, while serving I suspected many female soldiers I served with became pregnant to avoid onerous duty or to get a discharge. I have had this suspision confirmed by one fellow service member (female) who stated she knew of several such cases amoung her fellow female soldiers - some who later had abortions as soon as their discharges were approved.

Posted by: Walter Ronten at December 22, 2009 08:59 AM

in a repartee with Bill T, the following ensued:

"What happens when that male is NOT a US service member, but a civilian contractor...

We're subject to the UCMJ, too. We're also subject to host nation laws, which make things interesting at times.

...foreign allied SM or even a host nation national?

"Visiting" with either is one of the prohibitions in good ol' General Order Numbe One -- GO1 ain't just about "you can't have a drink"...

Posted by: BillT at December 22, 2009 12:07 AM

And while I understand what you say Bill, I don't think I have ever seen any US Army soldier nailed for being on either the giving or receiving end of consensual relations with civilians (professional or recreational), members of allied forces or contract personnel. Notwithstanding and unstated is that said relations must occur with a person of the opposite sex.

I am sure it has happened, but typically it has been in garrison (CONUS, HI and FRG) and was initiated by one parties' significant other, thereby opening the door to adultery charges.

As I am shuffling my civilian workload around to ready myself for the upcoming adventure, one of the "girls" in the office asked me why I didn't like lesbians.

WHAT!!??!!?? I told her I don't care about them. In fact I like a lot of the same things they do.....she laughed at that and all was well. A difficult situation in a PC world simply solved by an old CW4.

Posted by: Kbob in Katy at December 22, 2009 07:23 PM

I remember a long time ago when I was in the Army (those muskets were a bitch to keep clean), one of the things you could get court-martialed for (or at least spend the rest of your career peeling turnips) was getting sunburned.

Destroying government property, they said.

Posted by: ZZMike at December 22, 2009 08:48 PM

...And what does being a lady have to do with being a soldier?

If a woman really is raped, SHE is at fault if she gets pregnant after being raped? That's bull****. A woman who is NOT having consensual sex with anyone is supposed to go around taking birth control, just in case someone rapes her? I don't think so.

Posted by: Miss Ladybug at December 23, 2009 03:58 PM

I don't think Cass was arguing that at all, ML. She and I were debating the relative burdens of proof in such cases, should they advance to court martial; but I see that the MG has backed off the concept of actual trials over these issues anyway.

The legal issues around banning pregnancy are a mess, but the right of women not to be raped is not at issue. They have a right not to be; and to have their safety concerns heard early and often by command; and to resist it in the event, even unto using lethal force against another soldier (or 'other soldiers'); and, should it happen in spite of that, not only not to be blamed for it, but to receive the support of the service.

Posted by: Grim at December 23, 2009 06:25 PM

Guess I excerpted the wrong bit. Should have been this one:

I disagree. You are accusing her of failing to prevent a pregnancy.

You only have to prove that she had a duty not to become pregnant (not hard) and that she failed in that duty.

Posted by: Miss Ladybug at December 23, 2009 06:55 PM

... unlawful discharge is unlawful discharge - the male soldier made choices, too.

Am I the only reader who thought this was funny in the context of this topic?

Posted by: I Call BS at December 28, 2009 09:32 PM

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