Marine prosecutor reflects on lessons learned from sexual assault survivor
Her willingness to speak truth in spite of fear left a lasting impression on me.
When I first arrived at Camp Lejeune, North Carolina, in the winter of 2006, a dense fog blanketed the base’s many miles of trees and dense woods. The fog loomed until the next morning, pierced by the occasional yells and grunts of Marines during physical training.
As a junior military prosecutor, I checked in, eager to earn my stripes in the courtroom. I already knew that lawyers in the Marine Corps were often viewed with muted contempt, like the kicker on the football team. Kickers can wear the uniform and dress for the game, but everyone is quick to remind them that they’re just a kicker. Yet, in a pinch, the kicker can make the game.
But even as an unpopular sibling in an infantry-centric organization, I didn’t care. As a junior military prosecutor, I welcomed the challenge of a big caseload in one of the Department of Defense’s busiest trial shops. Troop numbers reflected the swollen ranks as the Corps grew to more than 200,000 troops to facilitate the boom cycle of deployments to Iraq and Afghanistan.
Many Marines hated Camp Lejeune, envying their peers who made it to San Diego or Hawaii. Lejeune is like a martial island in the forest, frozen in time with Cold War-era buildings. Tattoo parlors, strip clubs, and barbershops surround the base. It sits at least 90 miles from a sizable city, leaving many young Marines marooned without a car on weekends. Boredom leads to drinking, and drinking leads to misdeeds, including sexual misconduct.
In the trial shop, we handled the cases assigned to us. At the time, the Marine Corps prided itself on doing more with less. That meant that serious, felony-level cases were sometimes entrusted to green prosecutors, fresh out of Naval Justice School. As a newly minted Marine prosecutor, I remember hearing more than one junior Marine snicker and make snide comments about how I wore only two ribbons. Most officers they knew had racks of ribbons, earned during two, five, even eight combat deployments.
I learned before long that alcohol-facilitated sexual assault was among other crimes that happen throughout the ranks. Marines join expecting action, and they’re prone to pushing limits and taking risks. It didn’t seem to me that there was some magical panacea that should have been applied. Biology played a large role as young male brains, not fully formed, made bad decisions. Drinking, fighting, and general foolishness didn’t seem to occur more on base than on college campuses. It seemed to me the military owned no monopoly on misconduct.
But I still remember the day when my mentor said, “We gotta go see about a chick who was banging the baseball coach while her husband was away.”
At the time, I had just weeks on station. I soon learned the reported assault was stale—many months old. And it was the victim’s husband, a seasoned Marine, who had made the initial report. An automatic two strikes. I listened as the senior legal adviser, called the staff judge advocate—a muscled lieutenant colonel—joked with my mentor, a hulking captain. Thus, my first impression of sexual assault in the military was shaped by sarcasm and derision.
But all of that changed when I met, and interviewed, the woman involved in the case. She was reserved, intelligent, and mature. She told me she had been held down and forcibly raped by a junior Marine—the sports coach—in her own home, with her young children in their beds only steps away, while her husband was overseas. The victim didn’t scream because she worried the assailant might injure her children. And, I learned, she even attempted to get him to make an admission during a recorded telephone call afterward. My interview with her left me firmly convinced that she was telling the truth.
Yet, as in most cases, the facts were complicated. They had spoken on the telephone before. She met the sports coach in person, as a volunteer for the team. He had manipulated her by confiding in her about his marital troubles and asking for her help. It fit a pattern. The coach had previously faced nonjudicial punishment for adultery with the wife of another deployed Marine.
But as the case progressed, the victim got cold feet about the trial, wanting the ordeal to be over. The aggressive cross-examination by a female attorney during a preliminary hearing seemed to retraumatize the victim. Even the assailant’s prior offense wouldn’t survive first contact with the spin of the defense: The earlier offense had been consensual, and the defense argued the woman I had interviewed was in a similar secret romance with the coach. Ultimately, the victim refused to go forward, effectively killing our case. We were disappointed, but we respected the victim’s wishes.
As a junior prosecutor, I learned a lot of lessons from that victim. First and foremost, I learned that sexual assault cases can be complicated. Popular media depicts a caricature of rape as a stranger in the bushes jumping out of the dark with a knife. But I discovered that sexual assaults frequently involve familiarity between the victim and the assailant. This relationship creates a built-in consent defense, a favorite excuse of many cunning criminals. Worse, the predatory instincts of many rapists lead them to select vulnerable victims who may have blemishes in their own past that can be used to discredit them.
Second, and similarly, the experience taught me that my own biases and initial impressions were wrong. After interviewing the victim, I believed her 100%, as I do to this day. That meant admitting that what I had heard others say, and even my own initial thoughts about the case, were mistaken. It is true that there were many issues that, at first glance, cast doubt on the evidence. The victim had delayed reporting the assault for months. She did not come forward until her husband returned—and, even then, he initially contacted authorities. Because of the delay, physical evidence had dissipated. Further, there were no corroborating witnesses. To be sure, it was a tough case, just as many such cases are. Nevertheless, I believe she told the truth.
Third, I learned about the courage of victims. The experience had obviously damaged the victim physically and psychologically. Yet she mustered the guts to come forward and tell what had happened to her. The victim’s courage inspired me to pursue not only the evidence in her case, but that in numerous other cases that would later be assigned to me. While I remain especially disappointed for that victim and her family, her example made a difference.
Her willingness to speak truth in spite of fear left a lasting impression on me.
In the ensuing months, we attained several significant convictions in stale and challenging cases involving sexual assault and even child victims. And, based in part on this experience, several years later I had the opportunity to work as an attorney adviser on the Response Systems to Adult Sexual Assault Crimes Panel. The panel developed recommendations to help Congress improve the military justice system.
The panel’s recommendations led to the requirement for training and experience of investigators and prosecutors handling sexual assault cases. In hindsight, I was unequipped and unqualified to handle cases of that nature. I don’t believe my inexperience negatively affected the outcome of the case. In fact, the victim thanked me for our team’s work on the case. But, in retrospect, I do suspect that a lack of training and experience could have affected other cases. And while it was undeniably true that the government had to prioritize resources based on wartime requirements, the system had gaps and holes that likely failed to give many victims the attention they warranted.
The military justice system has changed dramatically in the past 15 years, including by introducing an extensive array of protections for victims, though a recent report shows it still has a long way to go. But I suspect many of the underlying attitudes, beliefs, and biases that I observed remain. There is still misogyny in the military (and in society). Many victims face significant barriers to achieving any semblance of justice.
I was able to acknowledge my own propensity to make mistakes and misjudge a situation. Hopefully, others can learn from my missteps and avoid making the same errors in judgment.
Dillon Fishman is a special agent (criminal investigator) and previously served as a federal prosecutor in Arizona. His criminal justice experience includes handling all manner of criminal cases, ranging from homicide and terrorism to white-collar crime and narcotics trafficking. He is also a judge advocate in the Marine Corps Reserve. Lt. Col. Fishman teaches law to seniors at the U.S. Naval Academy. He has deployed twice to Afghanistan and once aboard the USS Tortuga throughout Southeast Asia. All views expressed in this piece are personal and do not represent the position of or endorsement from the Department of Defense, U.S. Marine Corps, or any other government entity.