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He Said-she Said: How the Current Wrongful Conviction Statute Precludes the Innocent From Recovering in False Sexual Assault Cases

Written by: Federal Practice Group
Written by: Federal Practice Group

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The Navy-Marine Corps Court of Criminal Appeals’ decision in In re Gilpin, 81 M.J. 702 (N-M. Ct. Crim. App. 2021) has all but ensured that any military service member wrongfully convicted of sexual assault and unjustly imprisoned will never be able to recover from the United States Government.

By way of background, the NMCCA set aside Gilpin’s sexual assault conviction on the basis of factual insufficiency in December 2019 (United States v. Gilpin, No. 201900033, 2019 WL 7480783 (Dec. 30, 2019) 350 days after he was sentenced to confinement. Knowing his conviction was wrongful, and his confinement unjust, Gilpin then petitioned the NMCAA for a certificate of innocence, a prerequisite under 28 U.S.C. § 2513 to seeking monetary compensation from the United States Government. Prior to Gilpin’s petition for a certificate of innocence, the military had addressed a total of 5 such petitions—the last one being in 1983, and none of which dealt with a wrongful sexual assault conviction. Given the dearth of case law on the matter, and the fact that none of the previous petitions covered wrongful sexual assault convictions, the NMCCA used this as an opportunity to set binding and persuasive precedent to effectively preclude any further petitions by those whose sexual assault convictions are overturned for factual sufficiency.

This near total bar on recovery following a false conviction is based on the fact that in sexual assault cases, there are usually only two witnesses to the offense—the alleged offender and the alleged victim. This presents a unique challenge under 28 U.S.C. § 2513, because the statute requires the petitioner to not only prove his lack of guilt beyond a reasonable doubt (the standard used by the appellate court when first overturning the conviction), but also that he is also completely innocent of the charged offense. Despite the facts of the respective case, the NMCCA ultimately concluded that it is nearly impossible to ever prove innocence when accused of sexual assault:

Even if Petitioner could somehow rely solely on our opinion based on the evidence contained in the record of trial for his court-martial, when we examine that record, we do not find he has met his burden. The key difference here is between “innocent” as compared to (merely) “not guilty.” Petitioner must prove by a preponderance of the evidence that he did not sexually assault [the alleged victim]. What is often the problem for the Government in alcohol facilitated “he said-she said” cases is now Petitioner’s problem. The fact is that no one other than Petitioner and [the alleged victim] were in that room in [the barracks], and both were intoxicated, or tired, or both, to some level. Both had strong motivations to deem the interaction, respectively, as consensual or non-consensual. Based on the information and evidence in the closed criminal case, we do not find that Petitioner can show by preponderance of the evidence that he did not commit the acts charged. Thus, he fails on this part of the statute.

In re Gilpin, 81 M.J. at 708.

The irony with the NMCCA’s decision in In re Gilpin is that it contradicts its own findings reached in overturning the conviction in the first place. In a paragraph dedicated to detailing the various motives for the alleged victim to fabricate the assault, the NMCCA began:

Even beyond the physical and practical aspects of the alleged crime, one simply cannot ignore the Defense theory that [the alleged victim] had substantial motives to believe she would not have consented to sex. It is entirely possible [the alleged victim] does not remember what happened, but [] Gilpin reasonably believed they had consensual sex. 

Gilpin, 2019 WL 7480783, at *8 (emphasis added). If an appellate court, looking at all the facts of the case (at least those presented at trial) believes that the alleged victim had substantial motives to fabricate and that the accused reasonably believes he had engaged in consensual sex, then what more can the accused do to prove innocence? The existence or non-existence of the offense depends on what can be proven. It is impossible to prove that there was no offense if the offense is based in part on the subjective beliefs of the parties. After all, an accused has no control over the subjective beliefs of an alleged victim, and subjective belief, by definition, cannot be proven.

Consider: if this logic were to then be applied to sexual assault prosecutions, one would find it nearly impossible to even convict on an allegation of sexual assault (if an accused cannot prove innocence by a preponderance of the evidence, how is the government expected to prove guilt beyond a reasonable doubt—the question certainly operates both ways).

The real problem with the NMCCA’s decision in In re Gilpin is that the court creates a one-size-fits all analysis, which effectively bars all sexual assault petitions under 28 U.S.C. § 2513. At this point, the only likely way to rectify the situation is through Congressional action. After all, with the significant number of protections Congress has put in place for alleged military sexual assault victims (which have been of great benefit to those protected), it would be both fair and reasonable for Congress to enact a counterbalance for those rare instances, such as Gilpin’s, in which all the facts truly point to innocence.  

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