Recent media attention regarding sexual assault charges against celebrities is nothing new for military members. The same group, led by activists like Gloria Allred, initiated the “sexual assault crisis” in the military over five years ago. For years, military sexual assault charges have been brought to trial and careers have been ruined over uncorroborated allegations and the ignorant claim that “victims don’t lie.” The attorneys at Cherkasky Law have spent their careers fighting against frenzied and politicized allegations.
Military Sexual Assault Charges Without Evidence
For years, our clients have called our firm complaining they are under investigation for military sexual assault charges without any evidence that corroborates the allegations. “How can they take me to trial without any evidence?” many clients ask. The military, and now the mainstream media, are willing to prosecute sexual assault allegations based solely on the word of an accuser without corroborating evidence.
Just this week, TV personality, John Oliver confronted movie star, Dustin Hoffman, over an allegation that he sexually harassed a 17-year-old intern nearly 40 years ago. Mr. Oliver cites a mantra that has become ubiquitous in the new sexual assault climate: “she has no reason to lie.”
Alleged Sexual Assault Victims DO Have Reason to Lie
The “she has no reason to lie” mantra has been taught in military sexual assault response and prevention briefings for years. In fact, those briefings often improperly cite studies that only 4% of sexual assault allegations are fabricated. This statistic and the notion that sexual assault victims do not lie is patently false and horrendously misleading.
The truth is that the study cited about fabricated allegations assumes that the allegation has been entirely recanted – that the accuser admits that she lied. The study completely ignores the number of accusers that go to their grave with their lie. Furthermore, that study does not examine or factor in cases in which an accused person is simply found “not guilty”. Finally, the study does not inspect the notion that many sexual assault allegations involve legitimate claims by the accused that they were under an honest and lawful belief that consent had been given despite the accuser’s feeling that they did not desire sexual interaction.
CNN reports that Mr. Oliver places his head in his hands in response to Mr. Hoffman’s denial. The actions of Mr. Oliver represent a shocking and concerning trend in America of convicting a man simply based on the uncorroborated allegation of another. In America, those accused of a crime have a right to a presumption of innocence, a fact Mr. Oliver seems to forget.
Alleged victims do lie. Each week, the attorneys at Cherkasky Law have a different sexual assault case in which they identify the motives of an alleged victim to lie. Motives can be to avoid trouble with a spouse, to gain attention from those around them, to gain financially or professionally, to justify mental health issues, to damage someone they don’t like, or simply for the sake of lying. That’s right, some people lie just because they can. In other cases, the reason people lie cannot be detected, even by trained professionals. Studies indicate that humans are terrible lie detectors, and even trained professionals like forensic psychologists and detectives are only able to accurately detect lies slightly more than 50% of the time.
Often the issue is not whether a victim lied, but whether what they are saying is even a crime. In many cases, the alleged victim misremembers facts because of the effects of alcohol, or is so regretful of their actions that they blame the accused for not better understanding what she was feeling as opposed to what she was saying. Cases that deal with alcohol and regret can often result in the perception of the victim that they did not consent because they do not remember consenting, or belief that they were too intoxicated to consent even though they were legally able to communicate consent. This may be very traumatic for an alleged victim, and may be 100% consistent with their belief in the truth, but it is still not a crime for many reasons.
Presumption of Innocence in Sexual Assault Cases
The military has long been guilty of pressuring service members to “believe the victim”. The idea of “believing the victim” is a noble goal when put into the proper context that it is important to be open and receptive to sexual assault allegations to ensure a proper investigation is conducted. Instead, this idea bleeds into the consciousness of celebrities like Mr. Oliver and potential jurors.
In reality, the Constitutional right to a presumption of innocence is alive and well in the courtroom. The attorneys at Cherkasky Law prove that many times each month when they defend their clients against sexual assault allegations. When a persuasive attorney has the attention of responsible jurors, it is easy to remind them of the dangers of minimizing the burden of proof in any criminal case.
Cherkasky Law has handled hundreds of adult based sexual assault charges in the military. The firm’s victory rate in adult sexual assault cases is over 98%. That means a full acquittal or no prosecution in over 98% of its cases. There have been only three cases with sexual assault convictions with adult victims in the history of the firm: one has since been overturned by the appeals court, one involved injury so severe that emergency medical care was required immediately after the event, and the other involved a series of other serious criminal acts and that case is still under appeal. The success of the firm is not intended as a prediction of any future case because all cases are unique, but it does directly contest the proposition of Mr. Oliver that victims don’t lie.
Military Sexual Assault Charges Are Over Politicized
The military has been the victim of the politicizing of a fiction of a “sexual assault crisis.” Even a single case of sexual assault is a problem and our society should take reasonable efforts to ensure we are all safe. Furthermore, it is positive and important to advance our society’s respectfulness to one another and surety that a workplace will be a safe environment.
The military does not have a sexual assault crisis. Are there instances of sexual assault which should be investigated and prosecuted? Absolutely! However, there is nothing unique about the members of the military or the training in the military that promotes sexual violence. Further, there is nothing about the military that would reflect that allegations are not taken seriously.
In fact, military sexual assault charges are brought to trial without regard for the credibilty or weight of the evidence. Routinely, cases are brought to trial even though trained and objective preliminary hearing officers determine the case to have NO probable cause. The Generals and Admirals in the military are so debilitated by the risk of unwanted political pressure that they refuse to make the tough decision to not take a case to trial.
It is often the most liberal-leaning politicians and public personalities that are advocating against sexual assault, to include Mr. Oliver. However, these same liberal personalities are blatently forgetting that the most liberal concepts of our Constitution are those that protect citizens from conviction without due process and demands a presumption of innocence until proven guilty in a court of law.
Andrew Cherkasky, a partner at Cherkasky Law says: “John Oliver is sadly misaligned in his condemnation of Mr. Hoffman without Mr. Hoffman being afforded his right to due process and the presumption of innocence.” Cherkasky continues, “it is well meaning individuals like Mr. Oliver that risk the minimization of fundamental Constitutional rights in favor of a popularized anti-crime sentiment.”