Posted by Edmond Geary | Posted in Child abuse, Domestic abuse | Posted on 27-03-2011
Any criminal defense lawyer in Oklahoma will tell you when the police get a call for domestic abuse, there’s a guy who is headed to jail. It doesn’t matter what his spouse or girlfriend says at that time about what happened and certainly doesn’t matter what she says in the days or months later. Law enforcement and prosecution have set their ears to “deaf,” and will push to prosecute no matter what. What the police report says, however much disputed by the witnesses who were there, is written in stone for the prosecution, which will always put the worst spin on any nuance of fact and only that worst interpretation.
The U.S. Army is different. The Army recognizes there are problems in their communities, but they take an approach that involves listening to what happened and involve social workers, chaplains and physicians in an administrative process that is apart from criminal charges. It does not replace criminal proceedings, but not all suspected cases are prosecuted in criminal proceedings.
The Defense Authorization Act of 2000 provided for the creation of a Domestic Violence Task Force, which created a Case Review Committee (CRC) at most major Army installations. The CRC is a multidisciplinary team appointed by the installation or garrison commander and supervised by the Military Treatment Facility Commander. The CRC is overseen by the Army Facility Advocacy Program (FAP). The purpose of the FAP is “to prevent child abuse, to encourage the reporting all instances of such abuse, to ensure the prompt assessment and investigation of all abuse cases, to protect victims of abuse, and to treat all family members affected by or involved in abuse.” The purpose of both the FAP and the CRC is to promote and encourage stable and productive families in the Army.
The Case Review Committee (CRC) is composed of the Chief of Social Work, Services, who serves as its chairperson, the installation chaplain, a physician, a representative from the CID (Army Criminal Investigation Command Division, as the Army’s detective organization is known), the Army Substance Abuse Program Clinical Director, the Provost Marshal (also known as the military police), a judge advocate, the Family Advocacy Program Manager, who oversees the Family Advocacy Program at the installation, and the case manager.
The committee meets regularly to review cases of domestic violence and recommend treatment and prevention programs. It conducts hearings, and that is where judge advocates play an important role.
There is a two-part procedure, first to investigate whether an allegation can be substantiated and determine the best avenue to protect the alleged victim and to properly treat and rehabilitate the alleged offender. Judge advocates must advise on the legality in obtaining evidence, weighing evidence, and making proper findings and recommendations. Judge advocates are attuned to ensuring that soldier’s suspected of committing a criminal offense are advised their Miranda rights pursuant Article 31 of the UCMJ (Uniform Code of Military Justice), unlike the police and criminal prosecutors who always push the boundary as much as they can, fully committed to the adversary system.
Of course, the CRC is an administrative process. It provides for a burden of persuasion that is common to administrative proceedings and civil matters generally, unlike a criminal prosecution. Findings are made when the finders of fact are persuaded by a preponderance of the evidence, rather than beyond a reasonable doubt.
Also unlike the civilian criminal proceedings, the Army regulations provide that when a soldier refers himself to a social worker or counselor, that person should stop the interview and call CID or an MP for advice about advising the soldier of his rights. The Army regulation is clear in pointing counselors and social workers to the importance of obtaining legal advice when they are involved in witnessing a communication that might be privileged. The Army takes literally the Fifth Amendment privilege against self-incrimination, and, in Army criminal prosecutions, requires for a valid arrest the reading of the Miranda warning.
The committee is directed to balance soldier rights and family member protection. When it votes on the evidence to find a “substantiated” charge, it must recommend a treatment plan and provide family protection if necessary. In deciding the treatment plan, the CRC refers to an “incident severity index” found in the Army Regulations. This index is not an answer to every case but a tool the committee can use for classifying different levels of severity.
The CRC responsibilities continue after it makes its rulings. Reconsideration of its findings can be sought from a soldier, his family, the commander or the CRC can. This is completely different from the civilian criminal prosecution juggernaut that never veers away from trying to convict from the moment the police arrive at the scene of the call.
The CRC process and its wide mission of healing all parties may change. In 2000, the Task Force on Domestic Violence recommended creation of a Domestic Violence Assessment and Intervention Team (DVAIT). It would be managed by the FAP, but unlike the CAC, it would not make any findings to substantiate allegations but focus exclusively on assisting the alleged victims and leave the commander and law enforcement to decide on prosecution options.