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Vermont law students get
a glimpse of military justice

October 7, 2004

By Claude R. Marx
Time Argus Vermont Press Bureau

SOUTH ROYALTON, VT It is not often that a military tribunal about a sexual assault in Germany five years ago reaches the bucolic hills of Vermont.

That happened Wednesday when the U.S. Court of Appeals for the Armed Forces held a hearing at Vermont Law School as part of an outreach program in which it hears appeals cases before students at law schools around the country. The military judges and lawyers also speak to law students and faculty. Today a different case will be heard at Harvard Law School.

The five judges on Wednesday heard arguments from two U.S. Army lawyers about whether former Army Sgt. Ray Leak should have his overturned rape conviction reinstated. That conviction would add two years and one month to the three-year sentence Leak is serving for indecent exposure and adultery.

The convictions stemmed from a series of encounters between Leak and a female Army specialist in September 1999 at the Noncommissioned Officer Academy in Grafenwoehr, Germany.

Capt. Edward Wiggers, who represented the Army, argued that a lower court erroneously overturned Leak's rape conviction by focusing only on whether the victim adequately resisted his sexual advances for fear of injury.

He noted that fear of retaliation and possible dismissal could be enough reason not to resist a superior officer's advances.

"Courts do not limit physical harm to bodily threats," he said. "She didn't have an independent source of income and didn't want to jeopardize her ability to support herself and her son," Wiggers said.

"She feared resisting (Leak) to avoid provoking a noncommissioned officer and because she was worried about his potential to (negatively) impact her military career," he added.

Judge Susan Crawford, chief judge for the military tribunal, later asked whether a victim's fear has to be "objectively reasonable."

Wiggers said it was based on the victim's perceptions and the behavior of her group leader.

Capt. Rob MacDonald, defense counsel, told the judges that the appeal was an unfair attempt by prosecutors to try again to convict Leak of rape.

"What we are concerned about is the protection of the appellant, not whether the government gets another chance to make its case," MacDonald said.

He also emphasized that the use of force is not by itself sufficient to constitute rape. The key distinction is whether the victim consented.

He said the prevailing legal standard is whether "the victim felt resistance was futile."

Military Judge Charles Erdmann said that if the victim had resisted it might have been futile, because of the concerns about her career and speculated that that might have represented a form of intimidation.

The judges, who are hearing three cases away from their home base in Washington, D.C., this week, are expected to issue a decision later this year or in 2005.

The U.S. Court of Appeals for the Armed Forces is made up of five judges appointed by the president with the advice and consent of the U.S. Senate. Many of the judges have served in the military, but the president cannot appoint active-duty military personnel to the bench.

Unlike most federal judges, who have lifetime appointments, the members of this court serve 15-year terms.