“Three Days in August” how a Special Forces Medic was railroaded by German protection laws.

| January 24, 2012

Crossposted.

On August 22, 2008, Army Special Forces soldier Kelly A. Stewart made a huge mistake: he had a one night stand with a woman who was not his wife (who is herself another soldier). It’s a mistake he’s been paying for over the intervening 3+ years, and will be paying into the future. But was the punishment equal to the mistake? That’s the central question posed by “Three Days in August: A U.S. Army Special Forces Soldier’s Fight for Military Justice” by Bob McCarty.

I actually read this book on my vacation in Cabo all the way back in October, but haven’t really been able to get thoughts on paper about it until now. I can’t say it ruined my vacation or anything, but the book is incredibly troubling on many different levels. I’ve tried to get some ancillary information from sources I have within the military justice system, but most folks were either ignorant on what happened here, or happened to be somehow involved, and were thus loathe to discuss it.

Either way, the book excellently identifies an issue that needs to be addressed. After the one night stand, two months went by before the woman that SFC Stewart met at the discotheque and brought home decided that she had been kidnapped and raped. From the website devoted to the book:

During court-martial proceedings one year later, Stewart faced an Army court-martial panel comprised of soldiers who had recently returned from a 16-month deployment with the Army attorney serving as Stewart’s lead prosecutor.

Despite a lack of both physical evidence and eyewitnesses to the alleged crimes, it took only two days for the panel to find Stewart guilty of numerous sex offenses and another day for them to sentence him to eight years behind bars.

Incredibly, the conviction was based almost entirely on the testimony of Stewart’s accuser, a one-time mental patient who, with the backing of the German government, refused to allow her medical records to be entered as evidence.

The first complaint of Mr McCarty in the book with regards to the jury seemed interesting to me, and it was the one point that an Army JAG took issue with in an email. As he pointed out, this isn’t entirely out of the ordinary for the military justice system, and also has an analogous occurrence in the civilian court system. In many areas, voters will elect a County Prosecutor who work cases within his jurisdiction, and thus folks on the jury will have either voted for the prosecutor already (thus having positive feelings towards the prosecutor presumably) or have voted against him, and thus likely be predisposed to oppose him. The JAG I talked to didn’t think much of this argument. Admittedly, I was with McCarty on this when I first read it, but I also see the point the JAG was making. I don’t know that if I was on a jury that the presence of the JAG I had in the army would make any difference. To be honest, I don’t even know who our assigned JAG was.

But the lack of evidence argument that he makes *IS* very compelling. Not only was this a he said/she said situation, it also requires that you accept her version of events almost exclusively. For instance, during the “crime” at one point SFC Stewart went and took a shower, leaving the “victim” in the bedroom, a bedroom that contained a telephone. As a member of a jury, it would seem somewhat odd to me that in the middle of a vicious sexual assault that the victim would a) be left with the means to contact others, b) be left with the means to exfiltrate the scene of the crime, and c) would avail herself of neither of these options. Nonetheless, the jury clearly believed her version over his.

The real travesty of this case comes not in what they heard, but rather what they didn’t hear, to wit, the fact that the victim had spent a significant amount of time in a mental health facility and that part of her pathology dealt with her ability to tell the truth. As in some areas in the United States, Germany has its own victim protection laws. Theirs allows victims of sexual assault to shield from disclosure any medical records. There is, of course, generally a good public policy argument for these laws. It’s often stated that Defense Attorneys will first try to impugn the victim, and that as such is the case, reporting of such crimes goes down, as the victim herself (or himself) thus ends up on trial. My own personal view is that this is a bit overstated, but even if it isn’t, at what point do the victims’ rights to privacy trump the right of an accused to put forth a just legal defense? Either way, generally the court will do an “in camera” review of the evidence to make sure that there isn’t something in the records that would impact the trial. But in this case, because of the German law, the court was never allowed to even look at the records. In other words, generally the judge gets to look at the medical records and decide for himself if there is anything pertinent therein; here, that was not available.

In this case, it would be difficult to convince me that her right to suppress medical records that showed she had significant difficulty in divining and telling the truth should outweigh the right of a defendant to prove that the facts as presented by that person must be tempered with an understanding that the person may be incapable of discerning fact from fiction.

But, as the book makes clear, evidence submitted after the case was even more exculpatory. On the stand, the victim asserted that she was unable after the attack to have any relationship at all with men, was afraid of all males, and avoided them because of the attack. As it turns out, none of this was accurate as several people who know the victim well, or were in a position to witness her subsequent actions, submitted testimony in contradistinction to what she had testified.

As the “Three Days in August” website states:

When several witnesses came forward during a post-trial hearing in May 2010 to reveal startling proof that the accuser had lied several times during the trial, their words were largely ignored by the court – but not by the one-star general with the authority to change Stewart’s life.

In August 2010, the general took five years off of Stewart’s sentence and made him eligible for parole immediately. Nine months later, he was released from prison.

Though released from the U.S. Military Disciplinary Barracks at Fort Leavenworth, Kan., Stewart is fighting for a new trial so he can clear his name and shed the “sexual offender” label that will stay with him the rest of his life if justice remains out of reach.

I’m not one who thinks that the military justice system is inherently less just than the civilian system; actually, to the contrary, if I was up on charges, I think I would prefer the military side. I’d rather be judged by soldiers (even Officers) than someone in the civilian sector that I don’t actually have anything in common with. In fact, as one of the few people in America who has a list of his favorite attorneys (my college roommate is 1, Neal Puckett of Puckett Faraj that just represented SSG Wutterich is #2) I think that some of the smartest folks I have met are military lawyers, so would hope it would be in the venue. But in this case, it is hard to come to any conclusion other than that where the military justice system and shield laws of a foreign Government come into conflict, that the justice system will be subjugated. This should be rectified.

SFC Stewart now lives in Virginia, where he lives on property owned by his brother. He is separated from his wife and children as his wife is currently assigned to Ft Carson. In fact, as an update from his Dad makes clear on another website set up to support SFC Stewart:

Kelly arrived in Colorado to be with his family on Christmas after a brutal and lengthy flight delayed along the way by weather. His Parole Officer only allowed a 10 day visit, of which 2 will be spent traveling because of her refusal to give him a 20 day visit that would have allowed us to book a flight in an optimum period. As it was, we were forced to have him travel at peak travel times thereby tripling the cost and causing loss of days because there simply were very few available flights. May she have a Merry Christmas.

Anyway, he finally arrived and we talked to him last night. He was cooking a special dinner for the family (he loves cooking) when I called. He and the children are spending today at a local homeless shelter where they are bringing food and the children’s old toys and stuffed animals that they have outgrew.

No one understands that his actions were a bigger mistake than SFC Stewart, but were they so egregious that the military needed to squander both one of its most well-trained assets, but also the public reputation of its justice system? The book makes it clear that the answer there is an emphatic “no.” The case is currently on appeal, and hopefully the US Army Court of Criminal Appeals will take a long hard look at the evidence and decide that German shield laws should not legally trump the right of an accused.

If you wish to help SFC Kelly Stewart, you can go to the website set up in support of him by clicking this link. I’m sure SFC Stewart would appreciate anything you can give, even if it is only an email to him espousing your support in this effort.

This book should be required reading by anyone interested in the military justice system, so I commend to you “Three Days in August: A U.S. Army Special Forces Soldier’s Fight for Military Justice” by Bob McCarty.

Category: Politics

Comments (23)

Trackback URL | Comments RSS Feed

  1. ROS says:

    This puzzles me end as well:

    ” One witness at the hearing was the personal advisor to the accuser as appointed by the U.S. Army. Though charged to support the accuser, she contacted me immediately after the trial to refute actions and testimony of the accuser. This civilian employee described how the accuser appeared to be faking emotional outbursts during the trial and had even warned the accuser outside the courtroom. Subsequently, the accuser stopped doing so during later testimony. The civilian employee was reduced two grades and suspiciously removed from her position by the Army for coming forward with the truth in support of Kelly.”

    Huh?

  2. Wow, what a messed up situation. It’s sad to see this type of thing happen to someone, especially someone who defended our country.

  3. Doc Bailey says:

    I was always in favor of the military punishment system. If you sat like a dumbass you get treated like a dumbass. Most of the time corrective actions for minor things (missing formation) keep people from doing really stupid things. But I always felt that when Soldiers acted the fool the were tried justly.

    Once I was assigned to shred old case files from the Ft Riley post JAG. A simple check cashing case had a file 4 in. Thick. I felt that every DES idiom was weighed painstakingly. Even in the Haditha cases, I had more faith in military justice than I did civilian.

    What little I know of this case is troubling in the extreme, and brings to mind the very real specter of false accusations. Something I was terrified about as a soldier. Like it or not once accused of any sexual crime (to include statutory rape post prom) if you are male your guilty until proven innocent. That the crimes ate next to impossible to prove/disprove (in the case of sexual harassment a woman can simply feel “uncomfortable” by actions, which a male may not be consciously aware of) only exacerbates the problem.

    In this case I am sorry to say that this soldier’s life is sacrificed on the alter of gender relations.

  4. Spigot says:

    Bat shit crazy female + one night stand with SF stud = recipe for a legal and personal nightmare.

    I’ve got to pick up a copy and read this…and I wish him well. Hopefully, he will obtain real justice.

  5. Alberich says:

    Unfortunately, this kind of thing is very common. Rape accusers often have a serious mental health or drug background that the prosecution doesn’t care to investigate (and in fact they will fight vigorously to keep it out of court). “Expert” testimony often consists of a social worker who comes in to give standard excuses for why rape victims wait weeks, months, or years before “coming forward.” Heavy drug use, at least of some drugs, makes a person more selfish and less honest (and thus more likely to fake an accusation), but typically the evidence isn’t even admissible, so the prosecution can dress her up as the Girl Next Door.

    In some commands, if the evidence is weak, they won’t prosecute at all. That’s the right answer. In some, they want to turn every accusation into a prosecution. Wrong answer, IMO.

    I don’t know anything about the case you’re writing about, and will be mighty skeptical about everything in the book (as it appears designed to confirm my own prejudices all too well), but this book is on my list now.

  6. LL says:

    We had his father on the podcast a year ago talking about how his son was incarcerated and the injustice. I am very happy to hear his father’s fight and pushing helped him to get out earlier.

  7. defendUSA says:

    I have alluded to being a victim of similiar crime on this blog. I absolutely promise you if there was access to a phone or anything that I could have used, I would not have let the perp take a damn shower and lie down and wait for more. The instant I could get away, I ran like hell to someone who could help.
    This is just absurd. And I support SFC Stewart in this.

  8. TSO says:

    No, Apparently the wife has been extraordinarily gracious with her husband, and they are still together.

  9. DaveO says:

    STD isn’t the only disease that goes to bed with you.

    General comment: until the protection of PC is removed and the service(s) can have an open and honest discussion about what is rape, sexual assault, and harassment (herassment, and now with DADTDP gone, hisassment).

    Until then, women will always be victims, men always villains, and in the case of gays, whomever’s taller/heavier or mixed fuschia with mauve is the bad guy.

  10. Yat Yas 1833 says:

    During my years in the Marine Corps I was a Prisoner Escort, a ‘chaser’, and sat thru more than a couple of trials. It seemed to me that the JAG did everything possible to ensure the accused was afforded every single right under the sun. From the worst $h!Tbird, who was forever screwing up, to the most squared away hard charger, who made a mistake, they all got treated the same. This stinks!

  11. Beretverde says:

    This scenario reminds me of a time, many, many years ago, when a couple of 300F1 students had there way with a couple of nut-bag women in a hotel near the River Walk. As I look back, I now can see that these women were probably in their pre-prostitute phase and hadn’t figured it out yet. Anyway, the cops were called (they used the phone) and the women (also drunk along with the SFers) were “sort-of of claiming rape”… it started to get ugly and phone calls were about to be made, but when one of the women started hitting on one of the cops the whole scenario changed. Thank god the cops saw the light… and case closed, the students got off. They were lucky as hell on that one.

  12. Ben says:

    I knew two men who were falsely accused of rape while I was in the Army. It took both of them years to clear their names and it put it behind them. They said it was the most humiliating thing they have ever had to endure, the most grueling test of their character.

    Although it may not be the case in this situation, I think most false accusers are motivated by the idea that they can turn the power relationship around on a superior. A female private can bring down her platoon sergeant with a false accusation. If a woman is known to be a loose cannon, she can create an aura of fear around her. Men understand that they shouldn’t piss her off or she might make a rape accusation. When I say “piss her off”, I mean make her do her job, make her follow the same rules as everyone else.

    Of course, this SFC Stewart should have kept it in his pants when outside the presence of his wife too.

  13. Ben says:

    And another thing–is there any punishment at all for making a false accusation of rape? I mean, does the woman pay a price for ruining the man’s life? Or is it just forgotten?

  14. Ben says:

    There’s another problem too, and that’s the fact that a lot of people will act is you’re “pro-rape” if you show the slightest skepticism of the accuser’s claims. It’s like, “Didn’t you hear what she said? She was RAPED! And you’re going to tell her that you don’t believe her? She’s the victim here. No woman would lie about something like that. Do you think she just woke up one day and decided ‘oh, I think I’ll just make up a story about rape?'”

    Even waiting for all the facts to come can be considered insensitive to the victim.

  15. Susan says:

    OK, weighing in from the female side of things…

    Rape, when it is actually rape, is a very serious thing and is frequently described as soul murder. It destroys lives. Many women are reluctant to report it because they fear that they either will not be believed or will be blamed for putting themselves in a position where it could happen.

    That said, false accusations are also a very serious thing. A false accuser in this country can be charged with the crime of filing a false police report. This type of thing also ruins lives.

    Thus, all cases should be investigated. Sometimes a rapist is a person you would never expect and even if health records are not “admissable evidence,” the prosecutor should consider them and seriously weigh the credibility of the accuser.

    Of course one way SFC Stewart could have avoided this whole mess was to keep his pants on. Politicians, celebrities, and even service members, particularly SF service members, should realize that they are a target for people wanting a quick payday or to make a political statement and govern themselves accordingly. It is a sad fact, but it is a fact.

  16. Yat Yas 1833 says:

    Susan, amen and amen! My sister was a victim and was never ‘the same’ afterwards. Oh, she moved on, got married, had two great kids and now has two beautiful grand kids but she’s not the “Sissy” of my youth. Great post. Thank you.

  17. Beretverde says:

    Most rapes (e.g. “date rape”) never get reported.

    In dealing with people, I’ve learned that there are three versions to every story. What he (she) says, What she (he) says and what really transpired. Background on all individuals is one key to sifting through the mess, however, it can lead to other cans of worms. This one is a CLASSIC mess.

  18. Loki says:

    Susan, I agree that SFC Stewart should have “kept his pants on” as a moral/ethical matter but I do not think it would necessarily have protected him from these accusations. When the accusation is made months later with no evidence of any kind other that verbal testimony, no act need have taken place.

    This entire scenario could have played out the exact same way and I bet it HAS played out in almost the same way for someone who never did have sex with the accuser or even meet her except in passing. The current system has very few protections from/discouragements to completely false accusations.

  19. Yat Yas 1833 says:

    Loki, did you used to post on “GI Jargon”?

  20. Loki says:

    BTW, I don’t mean to sound callous in regard to rape.

    My wife still has anxiety/ptsd from an incident that occurred years before we met and it still makes me angry every time I think about it. But facilitating false accusations makes it worse. The current system, military or civilian, lacks checks and balances. When that happens, false accusations fly and it makes it far too easy for many people to dismiss rape allegations as “he said/she said” or to pick out the false, self-serving lies from the real rapes. It does a disservice to all actual victims.

  21. Loki says:

    Yat Yas, I don’t think so.

  22. Yat Yas 1833 says:

    Loki, I was a member of GI Jargon before it fell apart. There was a Loki there. I guess I was hoping. I’ve kept in touch with a few former members but we’re scattered all over the place.

  23. Flagwaver says:

    I had a buddy who was accused of raping a woman… the only problem was that we were on Annual Training about seven hours from where the alleged sexual assault took place. That didn’t stop a bench warrant from being issued and him being lead out of the training area in hand cuffs. Supposedly, while we were on maneuvers in a desert training environment, this Squad Leader drove seven hours, sexually assaulted one of his ex-girlfeinds, then drove seven hours back to the training range. The only problem is that he was present during all training briefings, AARs, and assisted on one of the ranges during the time of the alleged incident (I pulled watch with him that night that he supposedly assaulted her).

    The DA of our county didn’t care about any of the information that proved he wasn’t even in the same state as her (It happened in Oregon and we were in Yakima). He ended up in a three year long fight for his freedom. She ended up recanting her story, and the D.A. charged her with perjury, but still went ahead with the trial against the soldier.

    He was cleared of charges, but was passed over for his 7’s because of the allegations. The fact that the D.A. was completely against the military (she hit a soldier with a Lautenberg when the neighbors called the cops after they had a rather vocal sex session that she ended up bruised from and he was scratched) probably led to the ferocity with which she attacked the soldier.