The War on Sexual Assault: An Inside Look With Court Martial Attorney Tim Bilecki
Hosted by Carla Zelaya
Bilecki: In today’s military, 10, 15 years ago, the pendulum was on one side where a sexual assault allegation would be made and the military would sweep it under the rug, or not really do anything about it. At least that was the perception.
In recent years, the pendulum has swung so far to the other side that they want to show the community, they want to show the public that they are taking a stand. And they’ve waged what we call the war on sexual assault, and by doing that, anyone (whether male or female) making an allegation of sexual assault against a soldier, or against an Airman, or against a Marine, they’re going to investigate it.
And when I say investigate it, I mean they look at, take her statement, do a little investigation, and then charge the Soldier, the Marine, or the Airman. The mentality now, Carla, from Commanders (and that’s at a Senior level of command) is: if you didn’t commit the crime, we’ll take it to a jury trial and the jury or the panel will find them not guilty.
And that’s the wrong answer because if you don’t have good faith or belief that someone committed a crime, you shouldn’t take them to a trial. I think Commanders these days are using the military justice system, and that’s one of the reasons why we see this huge spike in sexual assault.
I don’t believe, for one moment, that in the military, 20/30/40 percent of their Soldiers, or the Marines, are a rapist. I mean, that’s a ludicrous, Carla.
Do False Accusations Happen?
Carla: We were talking off-camera and I find it amazing that people have motives to falsely accuse somebody that actually didn’t commit the crime.
Bilecki: Well, I think that happens in all walks of life, whether that’s civilian cases or military cases because, in the military, we’re just a microcosm of society. But the reality is people, do have incentives to falsely accuse. I’ve seen it myself, no different than if we were talking about false confessions.
A few years ago, if you would have asked me if someone could have falsely accused someone else of, let’s say, sexual assault (because that’s what is the big thing in the military now), it’s almost hard to believe. But in some ways, the military even incentivizes false accusations.
So, I’m going to give you an example of what I’m talking about, Carla. I was defending a service member out in Korea not that long ago, who was accused of sexual assault.
The long and short of it is, he [the accused] was out drinking with a subordinate Soldier, they were drinking, and they got intoxicated. They went back to his barracks room, and they had sex. While they were having sex, she saw a picture of his girlfriend on the bedside table—that made her pretty upset.
Whether those are good decisions or not, that’s another story but bad decisions aren’t always equal criminal decisions. A couple of days later, she actually made a sexual assault allegation against him. Now, you ask yourself, “Is seeing someone else’s girlfriend enough motive to accuse someone of sexual assault?” Maybe yes, maybe no.
But what the Army does now, in particular, they allow service members to get what’s called an Expedited Transfer. So, after the allegation was made, she was transferred immediately out of Korea back to a location near her home. Well, she hated Korea. She was also able to get an Honorable Discharge afterwards. She didn’t want to be in the military. So, she was able to get out of Korea, get an Honorable Discharge, and not only, on top of that, she applied to get a Disability Rating to what’s called MRTS (Military Rape Trauma Syndrome).
Now, you may say, “Is that enough to falsely accuse someone?” Well, at the end of the day, they charged this Soldier. They took him into what’s called an Article 32 hearing, and the case was set for trial. Now, going back to whether law enforcement does good investigations, they never pulled the video from the barracks, OK?
So, what would that show us? Our investigators (our team) pulled that video. They’re walking hand in hand, and as she left him that morning (because she wasn’t supposed to be in that barracks), she opened the door, turned her head out to make sure the coast was clear and walked down the hallway. And as she was walking out, essentially got caught be someone saying she shouldn’t be there. I asked myself, “How did law enforcement not find the video? Why didn’t they use it?” And that was an extraordinarily different version of events than what she had told.
When is it too late?
Carla: How late into a case can you actually defend the accused, and can they contact you?
Bilecki: Well, Carla, I’ve done both sides of the spectrum. I’ve been called on a case literally two days before we were set to being the jury trial. That’s the worst possible scenario.
I have to ask for a continuance to get on the case because no lawyer can take a case the day before trial. So, I’ve done that before and we’ll continue on the case, but my preference is to start as early as possible. If I can start the moment someone falsely accuses you, that’s my preference.
If someone accuses you of a crime you didn’t commit or accuses you of anything that’s criminal, I’d want to find out right then and there. At that point in time, I can stop the pre-text phone calls. I can stop to make sure you don’t take a polygraph.
I can make sure that you don’t confess to something you didn’t do. I can make sure they aren’t able to get DNA evidence without a warrant, and they are not able to use tactics against you. And that’s the great part about hiring a civilian attorney—is that we can take a case at any point in time probably before a certain service member is charged.
When I was a military attorney working in the Trial Defense Service, I was not allowed to start working on a case and forming an Attorney-Client relationship until charges were preferred—by that time, it’s often too late.