New Air Force Rules Affect Criminal Cases

All branches of the military have recently come under strong criticism for the perception that criminal victims hesitate to report to authorities for fear of reprisal by other military members.  In May 2015, Human Rights Watch published a report accusing the military of failing to protect victims of sex assault.  The Air Force issued a firm, wide-ranging response by changing AFI 36-2909 making retaliation against alleged criminal victims punishable under the UCMJ.  The rule change went much further, however, also making "Ostracism" punishable under the UCMJ.  The new rule defines Ostracism as "the exclusion, from social acceptance, privilege or friendship with the intent to discourage reporting of a criminal offense or otherwise discourage the due administration of justice."  The implications of this rule change are yet to be seen.  An improper understanding about this rule change could make it more difficult for defense counsel to defend accused individuals.  For example, defense counsel are permitted to present evidence in criminal cases that an alleged victim has a poor character for truthfulness.  Defense counsel are able to present this evidence through coworkers, supervisors, and acquaintances who have witnessed an alleged victim be untruthful on occasions that are not related to the criminal complaint.   If potential character witnesses believe speaking their opinion frankly may support a charge of retaliation or ostracism, they may choose not to express their opinion rather than risk criminal prosecution themselves. Proper training for Air Force members concerning the new rule should emphasize the need to treat an alleged victim with dignity along with the importance of preserving an accused individual's rights.

The views expressed herein are solely those of the author, and do not purport to be the views of the Department of Defense, the Air Force, or the Air National Guard.