Whoever would overthrow the Liberty of a Nation must begin by subduing the Freeness of Speech.1
As the putative victims of sexual assault feel empowered to come forward and seek justice,2 countervailing interests impel alleged perpetrators to assert their legal rights as well. Recent changes to the Article 32 hearing have made it a less fruitful source of discovery for defense counsel,3 and other sources of discovery for defense counsel are limited under the Rules for Courts-Martial.4 In addition, the stigma of a sexual assault accusation, even without criminal charges being brought or a criminal conviction, can have a devastating impact on a Soldier’s military career and reputation.5 As a result, defamation actions6 brought by those accused of sexual assault have become more commonplace,7 both as a potential tool for discovery8 and a mechanism to adjudicate the guilt or innocence of the alleged perpetrator in the absence of a criminal prosecution.9 Rarely does a defamation lawsuit solely serve the purpose of providing compensation for damages, assuming the alleged perpetrator is found not guilty under the standard of civil tort law.10
Putative victims in two high profile Army sexual assault cases have been sued for defamation, one for writing a blog post about her alleged sexual assault and one for simply reporting it to the Army, making this trend relevant for military justice practitioners.11 Given that defamation actions are usually taken by civilian lawyers on a contingency fee basis and therefore do not require an initial financial outlay on the part of the plaintiff,12 these numbers can be expected to increase. However, all military justice practitioners need to be aware of the second- and third-order effects of these civil actions, governed by state tort law and often brought concurrently with criminal prosecutions as a result of the short statute of limitations for defamation actions.13 The initiation of a meritless defamation lawsuit solely to intimidate a victim with invasive discovery and the cost of litigation can potentially derail a criminal prosecution or, at the other extreme, backfire on the alleged perpetrator.
This article will examine the First Amendment issues raised in this context from the perspective of the special victims’ counsel (SVC). Later, discovery and evidentiary issues raised by collateral defamation litigation and its potential impact on disposition from the perspective of the trial counsel will be discussed. This article will also explore some specific considerations that defense counsel should address when representing the alleged perpetrator, resulting in the final takeaways for all military justice practitioners.
What Special Victims’ Counsel Need to Know
Special victims’ counsel are legal assistance attorneys who provide zealous advocacy for victims of sexual assault throughout the military justice process, and “represent the best interests of their clients, even when the clients’ interests do not align with the Government’s interest.”14 Only active duty Soldiers, their dependents, retirees, and, under certain circumstances, Reserve Soldiers, their dependents, and Department of the Army Civilian employees are entitled to SVC representation.15 However, the Special Victim Prosecutor Witness Liaison (SVPWL) can help putative victims of sexual assault who are not eligible for SVC representation access local resources available outside the Army, such as certain pro bono legal services discussed herein.16
Prosecuting sexual assaults is a challenge, since the most egregious offenses usually occur in private without third party witnesses and without necessarily producing any corroborating physical evidence. A majority of military sexual assaults involve an imbalance of power and/or rank between the parties,17 and a significant number involve alcohol use by the putative victim,18 both of which negatively impact the credibility of the putative victim. Putative victims can have a good-faith belief that their accusations of sexual assault are true, even if the crime cannot be proven beyond a reasonable doubt at trial.19 However, reporting a sexual assault that does not result in a criminal conviction leaves the putative victim exposed to potential civil liability if the alleged perpetrator decides to bring an action for defamation under state tort law.20
Putative victims are entitled to the protection of the First Amendment of the U.S. Constitution. Otherwise, the criminal justice system would grind to a halt, as citizens would rightly fear to report potential crimes for law enforcement investigation. A report of sexual assault to law enforcement by its nature seeks government redress, i.e., favorable government action; thus, it is protected by the petition clause of the First Amendment as long as it is not baseless.21 Any statement regarding the alleged sexual assault made in good faith to a third-party is likewise protected by the free speech clause of the First Amendment, as the issue of sexual assault in the military has become a matter of public concern.22
However, trial courts are loathe to enforce federal constitutional rights based on interpretation of federal constitutional case law alone.23 As a result, an increasing number of state legislatures have passed, or are considering, statutes designed to deter, quickly resolve, and punish those who file meritless lawsuits intended to chill the exercise of First Amendment rights, also known as “strategic lawsuits against public participation” (SLAPPs).24 The intimidating effect of SLAPPs is the significant cost of defending the litigation, which generally cannot be recovered even if the defendant eventually prevails, and the invasive nature of discovery in civil litigation.25
These state laws, called anti-SLAPP statutes, offer varying degrees of protection for putative victims who exercise their First Amendment speech and petition rights by legislating procedural hurdles that make it more difficult for an alleged perpetrator to bring a meritless defamation or other tort claim under state law.26 Anti-SLAPP statutes generally utilize a motion to dismiss (or strike)27 or follow existing civil procedure for a motion to dismiss or summary judgment,28 provide for the expedited hearing of such motions,29 stay or significantly curtail discovery until the anti-SLAPP motion is decided by the court,30 and award attorney fees and costs to anti-SLAPP movants if they prevail on the motion.31
The most broadly drafted anti-SLAPP statutes protect both speech and petition rights, in all forums, whether public or private.32 Other anti-SLAPP statutes only protect petition rights,33 some only in a government proceeding.34 Most anti-SLAPP statutes do include a fee-shifting provision in the event the movant prevails, which addresses the most chilling aspect of SLAPPs, i.e., the cost of attorney’s fees.35 However, about half of all states either provide no statutory anti-SLAPP protections for putative victims36 or else existing statutory protection is extremely limited.37
The Westfall Act and Other Defenses
The primary concerns of the putative victim will usually be the financial cost of fighting the civil litigation and stopping it in its tracks as soon as possible. If the putative victim is being sued solely on the basis of a report to the Army as a federal employee or Soldier, they are arguably accorded absolute immunity from any civil liability under the Westfall Act.38 The process to invoke Westfall Act protection is to request certification by the Attorney General of the United States (through the chain of command and Army Litigation Division) that the federal employee or Soldier was acting within the scope of his or her office or employment at the time of the report.39 If the Attorney General certifies the scope of office or employment, then an Assistant United States Attorney will remove the case to federal court and substitute the United States for the federal employee or Soldier at no cost.40 If the Attorney General declines to certify the scope of office or employment, the putative victim can remove the case to federal court and petition the court to find and certify that they were acting within the scope of their office or employment, but they would need to retain civilian counsel to do so.41 In either event, the defamation case is removed to federal court, if not brought in federal court, and the United States is substituted as the party defendant.42
Other potential defenses are more limited in scope and require the putative victim to retain civilian counsel to assert on their behalf. If the putative victim is not a federal employee or Soldier and/or if they reported to state law enforcement, they generally only receive qualified immunity under state law for reporting to state law enforcement, unless state law follows the Restatement (Second) of Torts section 588 and provides absolute immunity.43 In addition, any other communication made as part of, or related to, the putative victim’s report of sexual assault, for example to a lawyer, chaplain, victim advocate, etc., cannot serve as the basis of a defamation claim if the communication is otherwise subject to absolute or qualified immunity and/or inadmissible as evidence due to an evidentiary privilege.44
It is critical for SVCs to advise their clients about potential civil liability for speaking to anyone about the sexual assault other than the Army’s reporting chain, law enforcement, and any third-parties described above. The alleged perpetrator may still bring suit, regardless of any potential privilege and/or immunity. However, the putative victim has the best chance of ending a defamation lawsuit in its preliminary stages at a reduced cost, and potentially recovering attorney fees under any applicable state anti-SLAPP statute if their statements are privileged and/or subject to either absolute or qualified immunity. In addition, SVCs should also advise their clients about potential civil liability for speaking to the media, making any post on social media, or blogging about the sexual assault, when the client may not be protected by a state anti-SLAPP statute or such protection may be limited.
The most important advice the SVC can give a client is the knowledge that time is of the essence in asserting any potential anti-SLAPP defense under state law, if available. Most state anti-SLAPP laws require that the motion to dismiss (or strike) be filed within thirty to ninety days of service of the lawsuit,45 which does not give the putative victim much time to retain counsel and file an anti-SLAPP motion. In states where anti-SLAPP laws provide for the recovery of legal fees, the putative victim can be advised to seek the services of a media lawyer, who will have the technical expertise to assert a successful anti-SLAPP motion, since media entities are often sued for libel. A lawyer with subject matter expertise will also have the financial motivation under a fee-shifting statute to represent a client who may otherwise lack the financial means to pay for legal services. In addition, some non-profits serving victims of sexual assault, such as the Victim Rights Law Center in Massachusetts and Oregon and the Ohio Alliance to End Sexual Violence, provide referrals for pro bono representation in defamation lawsuits.46
What Trial Counsel Need to Know
With client consent, the SVC should make the trial counsel aware of any pending civil litigation against the putative victim, especially defamation claims, for the reasons discussed below. The trial counsel should also be aware that any civil litigation brought by the putative victim against the alleged perpetrator relating to or involving the sexual assault charges, such as filing for a victim protective order or divorce, raises some of these same issues. If a putative victim is not eligible for SVC services, the SVPWL can refer them to local resources outside the Army that may be able to provide pro bono legal assistance.
Discovery and Evidentiary Issues
Discovery in civil litigation is extremely broad, invasive, and largely unfettered by judicial oversight.47 Trial counsel should be aware that it provides defense counsel with the opportunity to obtain impeachment evidence regarding the putative victim through depositions and testimony at trial or during a hearing.48 It also provides defense counsel with the opportunity to go on a fishing expedition and uncover evidence about the putative victim that would otherwise not likely be subject to discovery through subpoena and/or a request for procurement in a court-martial.49 In a court-martial, it is easier to argue in support of a ruling regarding admissibility and/or the procurement of a witness once relevant evidence is in the defense’s hands than to demand broad discovery with regards to evidence that possibly exists.50 Even if a criminal case is pending, the putative victim may not be able to obtain a stay in the civil case, depending on the controlling law where the civil case is brought.51
On the flip side, the interrogatories, sworn statements, depositions, and/or testimony (whether at trial or during a hearing) of the alleged perpetrator in the defamation action can potentially be introduced as substantive and/or impeachment evidence in a court-martial.52 In addition, although accuseds’ right to invoke their Fifth Amendment rights while in custody or during the court-martial cannot be used against them, alleged perpetrators’ silence in a civil lawsuit can be used to draw an adverse inference against them and, with regards to any fact that is later asserted in a court-martial, can also be used as impeachment evidence.53 As a matter of equity, the Fifth Amendment is a shield, not a sword to be used in civil litigation.54 In addition, the plaintiff in a civil action is less likely to be successful when arguing that the pending criminal case justifies a stay.55
Effect on Case Disposition
Since the putative victim faces the very real risk of financial ruin in the face of a defamation lawsuit, win or lose, trial counsel should be aware that the putative victim will be less likely to support any administrative remedy short of a court-martial. The putative victim will likely desire a remedy with either the binding effect of collateral estoppel or issue preclusion under state law that provides admissible evidence in the civil litigation.56 If the alleged perpetrator is found to have committed the sexual assault by a preponderance of evidence in an enlisted separation action with specific enough findings, this will likely support the putative victim’s affirmative defense of substantial truth in the civil action, as discussed further below.57 If the alleged perpetrator is an officer, there is no criminal or administrative action short of a court-martial that can potentially cut off the putative victim’s liability. An officer separation does not necessarily require that the findings be supported by a preponderance of the evidence, and an officer can potentially resign in lieu of elimination without any factual findings.58
As noted above, proving the truth of an allegation of sexual assault carries a high cost to the putative victim, in both time and money, and requires the putative victim to be deposed and take the stand. The argument that an administrative separation will spare the victim the emotional trauma of testifying in court does not carry any weight if the putative victim is being sued for defamation. A founded law enforcement investigation will not help the putative victim avoid liability for a defamation claim, since the investigative report is inadmissible hearsay.59 The putative victim must attack, as a factual and legal matter, the alleged perpetrator’s claim that the allegations are defamatory.60 Substantial truth is an affirmative defense to defamation under state tort law, requiring putative victims to prove their allegations by a preponderance of the evidence.61
What Defense Counsel Need to Know
There are cases of false accusation in which a civil defamation suit is merited and the competing First Amendment rights of the alleged perpetrator must be respected. However, any seasoned defense counsel worth their salt knows that, even in light of the strongest possible evidence, there are criminal defendants who will steadfastly assert their innocence and insist they have been falsely accused.62 Alleged perpetrators of this mindset will likely desire to file a civil defamation suit in order to, in their minds, clear their name and make a false accuser pay. Defense counsel should be aware of the second- and third-order effects outlined above and the additional pitfalls discussed below when advising the alleged perpetrator of a sexual assault with regards to the potential benefits and risks of initiating civil litigation against the putative victim.
In cases where a civil defamation suit is merited, defense counsel should limit the scope of any conversations with civilian civil counsel to military justice matters in which the defense counsel would be considered an expert consultant, in order to ensure the preservation of the attorney-client privilege for evidentiary purposes.63 Defense counsel can make civilian civil counsel aware of unique features of the military justice system and opportunities to put evidence before the convening authority for consideration that would otherwise be inadmissible in a court-martial. Defense counsel should not provide any specific guidance with regards to discovery requests in the collateral civil litigation. This would provide grounds for an abuse of process counterclaim by the putative victim against the alleged perpetrator asserting that the civil ligation was brought solely to obtain discovery for the collateral court-martial, which could allow the putative victim to pierce the attorney-client privilege.64
Civilian civil counsel can receive the benefit of defense counsel’s expertise regarding the military justice process, and then tailor the scope and timing of discovery requests in the defamation lawsuit accordingly. However, the best practice is for the alleged perpetrator to hire a civilian criminal defense lawyer with experience trying courts-martials for the purpose of advising civilian civil counsel regarding the timing and scope of discovery requests in the defamation action. Although this obviously results in additional legal fees, it is the only way to completely ensure the preservation of the attorney-client privilege for evidentiary purposes.
In addition, as an unpaid advocate, defense counsel does not have the inherent potential conflict resulting from the financial remuneration that may flow from successful litigation of a civil tort case on contingency. Defense counsel should therefore be able to provide more balanced and nuanced advice to the alleged perpetrator about the potential pitfalls of civil litigation in the context of a military criminal case than civilian civil counsel may provide. The gravest risk arises from defense counsel’s inability to be completely frank with civilian civil counsel about strategy in the criminal case due to the ethical constraints described above. This may result in the left hand not knowing what the right hand is doing. Unbiased advice regarding the potential risks and benefits of a civil tort case is one of the most valuable contributions defense counsel can make in the case of a joint representation with civilian civil counsel.
Unlike the filings and evidence in a court-martial, all civil litigation is part of the public record upon filing unless specifically sealed by the judge and is freely accessible to the media.65 The media may only find out about the criminal investigation and prosecution as a result of the pleadings in civil litigation, resulting in negative pretrial publicity about the alleged perpetrator that otherwise may not have occurred. Unlike trial counsel, who are restricted by the rules of prosecutorial ethics as to what they can say to the media about a pending case,66 and the SVC, who must seek permission from their chain of command to speak to the media,67 the putative victim’s civilian lawyer can comment about what is already on the public record in a relatively unconstrained manner.68 In that event, defense counsel can respond in a limited manner to any negative pretrial publicity, in order to protect the alleged perpetrator from substantial undue prejudice.69 However, any more substantive response preferably should come from surrogates, such as a public relations firm hired by friends and family, due to the attribution of any statement made by defense counsel to the alleged perpetrator and the risks of discussing the details of the case with the media.70
Civil litigation presents the opportunity for far greater and more factually detailed pretrial publicity than would otherwise be possible, given the rules of legal ethics. The pretrial publicity may have a significantly negative impact on defense counsel’s ability to persuade the convening authority to take less punitive action and to line up character witnesses for a trial on the merits and/or supportive sentencing witnesses in the event of a criminal conviction or plea deal.71 On the other hand, it provides alleged perpetrators with an opportunity to get their story on the record, which, if compelling, may result in leniency by the convening authority or a decision by the putative victim to cease cooperating with the prosecution.72
Adverse Inference and Impeachment
As discussed above, the alleged perpetrator’s interrogatories, sworn statements, deposition testimony, and testimony at trial or during a hearing in any civil litigation can potentially be used against them at a court-martial during either the case-in-chief and/or as impeachment evidence.73 In addition, the alleged perpetrator’s silence in the civil litigation, when faced with accusations that would be reasonable for them to rebut, can be used at a court-martial as evidence from which an adverse inference can be drawn. And, with regards to any fact they later assert in the court-martial, it can also be used as impeachment evidence.74 The alleged perpetrator also faces potentially broad and invasive discovery that may uncover evidence supporting the government’s case. Defense counsel should have frank discussions with the alleged perpetrator regarding any potential evidentiary issues and make sure the juice is really worth the squeeze when filing defamation litigation against the putative victim.
Defamation litigation can have the most severe potential impact during the sentencing phase of the court-martial, in the event that the alleged perpetrator is convicted or negotiates a plea deal. Defense counsel should advise the alleged perpetrator that if the defamation litigation is found to be an anti-SLAPP lawsuit, the civil court’s findings that the defamation litigation completely lacked merit, and was brought for improper purposes, such as to deter the putative victim from testifying against the alleged perpetrator in the court-martial, this provides the government with strong aggravating evidence of additional financial and emotional harm to the putative victim.75 In addition, attacks on the putative victim made during the civil litigation or in the media can potentially be used by the government to undercut the genuineness of any expressions of remorse by the alleged perpetrator during the sentencing phase, whether the convicted accused takes the stand to testify or simply reads an unsworn statement.76 Defense counsel must also consider that the putative victim will likely want restitution for legal fees resulting from the civil litigation as part of any plea deal.77
Defamation litigation against the putative victims of sexual assault is a growing trend nationwide, not only impacting military sexual assault prosecutions but also producing ripple effects in the larger civilian conversation about sexual assault.78 In the context of sexual assault prosecutions by the Army, military justice practitioners cannot afford to ignore the larger legal issues arising from defamation litigation against the putative victims of sexual assault. Trial counsel should be prepared to war-game the second- and third-order effects of any such civil litigation, while SVCs and defense counsel should be prepared to advise their respective clients with regards to the potential risks, benefits, and common pitfalls of any such civil litigation. TAL
1. Benjamin Franklin, Silence Dogood, No. 8 in The New-England Courant (1722).
2. See Dianna Cahn, ‘Where’s Our Reckoning?’ Military Women Gather Outside Pentagon in #MeToo Protest, Stars and Stripes (Jan. 9, 2018), https://www.stripes.com/news/where-s-our-reckoning-military-women-gather-outside-pentagon-in-metoo-protest-1.505745.
3. Under the Fiscal Year (FY) 14 National Defense Authorization Act (NDAA), the accused lost substantial due process rights with regards to the Article 32 hearing, which previously was intended to “serve as a means of discovery.” See Major Elizabeth Murphy, The Military Justice Divide: Why Only Crimes and Lawyers Belong in the Court-Martial Process, 220 Mil. L. Rev. 129, 154–55 (2014). “Before the passage of the [FY 14] NDAA, an Article 32 hearing was a ‘thorough and impartial investigation of all the matters set forth therein’ and an ‘inquiry as to the truth of the matter set forth into the charges.’ The NDAA amends Article 32 of the [Uniform Code of Military Justice] to a limited preliminary hearing where there must be a determination of jurisdiction, form of charges, probable cause that a crime has been committed, and recommended disposition. The NDAA further limits the former thorough, impartial, and truth-seeking function of the Article 32 hearing by specifically providing that a victim is not required to testify and will be considered unavailable if she elects not to do so.” Id.
4. “Pre-referral defense requests for witnesses, depositions, and evidence must go through trial counsel and the convening authority. This forces defense counsel to disclose what would otherwise be confidential information about defense witnesses and theories, which thereby provides trial counsel with more information more quickly than their civilian counterparts.” Heidi L. Brady, Justice Is No Longer Blind: How the Effort to Eradicate Sexual Assault in the Military Unbalanced the Military Justice System, 2016 U. Ill. L. Rev. 193, 199 (2016). “Trial counsel has no comparable requirement. Defense counsel may only submit such requests to a military judge after a case has been referred and the convening authority has denied the request. An ex parte procedure, wherein trial counsel would not be present, is not available.” Id. at 209; see also Manual for Courts-Martial, United States, R.C.M. 703(c)(2)(A)-(B)(i-ii) (2019) [hereinafter MCM]. However, the Military Justice Act of 2016 now provides that, beginning 1 January, 2019, military judges and magistrates can make decisions on pre-referral investigative subpoenas and wiretaps. David A. Schlueter, Reforming Military Justice: An Analysis of the Military Justice Act of 2016, 49 St. Mary’s L.J. 1, 48 (2017).
5. See Tom Jackman, Jury Orders Blogger to Pay $8.4 Million to Ex-Army Colonel She Accused of Rape, Wash. Post (Aug. 11, 2017), https://www.washingtonpost.com/news/true-crime/wp/2017/08/11/jury-orders-blogger-to-pay-8-4-million-to-ex-army-colonel-she-accused-of-rape/.
6. The term “defamation” refers to the torts of both slander and libel under state law, the former being spoken and the latter being written. See Bonnie Docherty, Defamation Law: Positive Jurisprudence, 13 Harv. Hum. Rts. J. 263, 264–65 (2000).
7. In the context of college sexual assault accusations, which affect a similar age demographic and cause similar consequences, defamation lawsuits are notably increasing. Tyler Kingkade, As More College Students Say “Me Too,” Accused Men Are Suing For Defamation, BuzzFeed News (Dec. 5, 2017), https://www.buzzfeed.com/tylerkingkade/as-more-college-students-say-me-too-accused-men-are-suing?utm_term=.vbQ9OQwkb#.xk22PqVMo.
8. See infra note 47 and accompanying text for the scope of discovery in civil litigation.
9. “Economic harm is not conceptually essential to the law of defamation. Except in some slander cases, it is not a prerequisite to recovery. Whether a statement is actionable is determined not by asking whether it caused harm, but by a more abstract inquiry into the nature of the words themselves. The threshold question in a defamation case, unlike an economic tort case, is not whether the plaintiff has suffered an economic loss, but whether the statement complained about is ‘defamatory.’” David A. Anderson, Rethinking Defamation, 48 Ariz. L. Rev. 1047, 1047–48 (2006).
10. See id. In several high-profile defamation suits, the plaintiff pursued an essentially uncollectible judgment. See, e.g., Amy Kaufman & Richard Winton, She Accused Director Brett Ratner of Rape in a Facebook Post. Then He Sued Her for Defamation, L.A. Times (Nov. 2, 2017, 2:35 PM), https://www.latimes.com/business/hollywood/la-fi-ct-brett-ratner-melanie-kohler-lawsuit-20171102-story.html (Hollywood director-producer Brett Ratner did not bring a libel lawsuit against accusers who are wealthy Hollywood actresses; instead he sued a small business owner living in Hawaii); Jackman, supra note 5 (Describing the impossibility of ever paying the $8.4 million defamation judgment against her, blogger and stay-at-home mom aged “52, said she was devastated by the verdict and fearful for her family’s future. ‘I feel like I’m a financial slave for the rest of my life’ . . . .”).
11. See, e.g., Craig Whitlock, In the Military, Trusted Officers Have Become Alleged Assailants in Sex Crimes, Wash. Post (Oct. 19, 2017), https://www.washingtonpost.com/investigations/in-the-military-trusted-officers-became-alleged-assailants-in-sex-crimes/2017/10/19/ec2cf780-ae9a-11e7-be94-fabb0f1e9ffb_story.html; Jackman, supra note 5.
12. “Many consumer organizations, public advocates, labor unions, and plaintiffs’ lawyers view the United States’ system of contingent fees as nothing less than the average citizen’s ‘key to the courthouse door,’ giving all aggrieved persons access to our system of justice without regard to their financial state. . . . Thus, contingent-fee retentions are generally beneficial to tort plaintiffs because they give plaintiffs access to the courts, even the odds of a fair recovery or settlement, and foster confidence in and satisfaction with counsel. Indeed, it is indicative of the contingent-fee contract’s role in securing access to the courts and fair settlement values for tort victims that labor unions and consumer advocates usually defend it, while those advocating corporate interests typically attack it—albeit often in terms that profess a pious concern that plaintiffs (their adversaries in the tort system) need to be protected from their own counsel.” Elihu Inselbuch, Complex Litigation at the Millennium: Contingent Fees and Tort Reform: A Reassessment and Reality Check, 64 Law & Contemp. Probs. 175, 175, 179 (2001).
13. State defamation law generally provides for a one-year statute of limitations for this tort. See Adeline A. Allen, Twibel Retweeted: Twitter Libel and the Single Publication Rule, 15 J. High Tech. L.J. 63, 65-66 (2014).
14. U.S. Army Special Victims’ Counsel Program, Special Victims’ Counsel Handbook Fourth Edition 1 (9 June 2017) [hereinafter SVC Handbook]; see also 10 U.S.C. §1044e (2018).
15. 10 U.S.C. §§ 1044, 1044e (2018); U.S. Dep’t of Army, Reg. 27-3, The Army Legal Assistance Program para. 2-5 (21 Feb. 96); U.S. Dep’t of Army, Dir. 2017-16, Civilian Employee Eligibility for the Special Victims’ Counsel Program (1 May 17).
16. See U.S. Dep’t of Army, Reg. 27-10, Military Justice paras. 17-3–17-12 (11 May 16).
17. Office of People Analytics data suggests that the active duty Soldiers most commonly experiencing sexual assault are junior enlisted Soldiers assaulted by a Soldier slightly higher than them in the enlisted ranks. “57% of DoD women and 53% of DoD men indicated the alleged offender(s) was (were) in a higher rank than them.” Off. of People Analytics, OPA Report No. 2016-050, 2016 Workplace and Gender Relations Survey of Active Duty Members, Overview Report 65 (May 2017). “Army women (19%) were more likely than women in the other Services to indicate the alleged offender(s) was (were) ranked E7–E9 . . . . There were no significant differences between Services for men when comparing the rank of the member to the rank of the alleged offender(s).” Id. at 66. “Combining those who indicated the alleged offender(s) was (were) their immediate supervisor or someone else in their chain of command (excluding their immediate supervisor), 27% of [DoD] women indicated the alleged offender(s) was (were) in their chain of command.” Id. at 69. “Combining those who indicated the alleged offender(s) was (were) their immediate supervisor or someone else in their chain of command (excluding their immediate supervisor), 34% of [DoD] men indicated the alleged offender(s) was (were) in their chain of command.” Id. at 70.
18. Among active duty service members who indicated experiencing sexual assault, forty-eight percent of women and thirty percent of men indicated they had been drinking at the time. Id. at 90–91. Sixty-four percent of women and sixty of men who were drinking indicated the alleged offender bought or gave them alcohol to drink. Id.
19. The same evidentiary issues that make prosecuting sexual assault difficult also make it difficult to determine whether or not an accusation of sexual assault is factually false. An accusation may simply lack sufficient evidentiary support and/or not meet the legal definition of a sexual assault while still having occurred exactly as the putative victim described. David Lisak, a leading sexual assault researcher, has found false rape reports to be between 2% and 10% of all reports, based on the results of eight methodically rigorous studies. David Lisak, Lori Gardinier, Sarah C. Nicksa, & Ashley M. Cote, False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases, 16 Violence Against Women 1318–34 (2010).
20. Even if there is a plea deal for a lesser-included offense, some alleged perpetrators might still bring a defamation suit. See Lindsey Bever, She Called the Man Who Sexually Assaulted Her a Rapist. Then He Sued Her for Defamation., Wash. Post (Oct. 4, 2016), https://www.washingtonpost.com/news/post-nation/wp/2016/10/03/i-felt-re-victimized-woman-sued-for-referring-to-the-man-who-sexually-assaulted-her-as-a-rapist/.
21. See Protect Our Mountain Environment, Inc. v. Dist. Court of County of Jefferson, 677 P.2d 1361 (Colo. 1984).
22. See Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986).
23. For example, in a defamation suit filed by Hollywood producer-director Brett Ratner against a woman who accused him of rape in a Facebook post, a federal judge denied the defendant’s motion to dismiss for failure to state a claim in light of the defendant’s free speech rights under the First Amendment of the United States Constitution. See Amy Kaufman & Victoria Kim, Judge Declines to Throw Out Brett Ratner’s Defamation Suit Against Woman Who Alleged Rape, L.A. Times (Feb. 8, 2018), https://www.latimes.com/local/lanow/la-fi-ct-ratner-kohler-hawaii-ruling-20180208-story.html. But see Harris v. Adkins, 432 S.E.2d 549 (W. Va. 1993); Protect Our Mountain Environment, Inc., 677 P.2d at 1368–69 (holding that suits alleging misuse or abuse of the administrative or judicial processes of government may not state a claim upon which relief can be granted in light of the constitutional right to petition and the defendant can make a motion to dismiss, similar to a motion for summary judgment, which then requires the plaintiff to make a sufficient showing that the defendant’s petitioning activities were not immunized from liability under the First Amendment because they were devoid of reasonable factual support or lacked any cognizable basis in law for their assertion and the primary purpose was to harass the plaintiff or to effectuate some other improper objective).
24. “Practically every discussion of anti-SLAPP legislation and litigation begins with an acknowledgement of Professors George Pring and Penelope Canan. In fact, the now ubiquitous term ‘SLAPP,’ an acronym for ‘Strategic Lawsuits Against Public Participation,’ was coined by Pring and Canan in the mid-1980s. Their ten-year study of 247 separate lawsuits first identified ‘[a] new breed of lawsuits . . . stalking America.’ These lawsuits, known as SLAPPs, are a pernicious form of meritless legal action intended solely to retaliate against the exercise of petition and speech rights. Pring and Canan’s expose of SLAPPs forms the key theoretical justification (and only empirical basis) for an ongoing slew of legislation meant to curb such strategic litigation. At least twenty-nine states, the District of Columbia, and the territory of Guam have enacted some form of anti-SLAPP legislation since Pring and Canan first published their study. Recent lobbying efforts by reporters, citizens’ rights groups, and even the American Bar Association aim to pass an anti-SLAPP statute at the federal level to provide broad-based protection for speech and petitioning.” Andrew L. Roth, Upping the Ante: Rethinking Anti-SLAPP Laws in the Age of the Internet, 2016 BYU L. Rev. 741, 741–43 (2016). There currently is no federal anti-SLAPP statute, and although some federal circuits apply state anti-SLAPP law under the Erie doctrine in cases of diversity jurisdiction, there is currently a split among the circuits on this issue. See Colin Quinlan, Erie and the First Amendment: State Anti-SLAPP Laws in Federal Court after Shady Grove, 114 Colum. L. Rev. 367 (2014).
25. “The goal of a SLAPP is straightforward—silence the opposition. . . . The suit is, by definition, meritless. That is, the filer does not hope to win the suit. The filer does not care about actual redress of the wrongs alleged. The filer only wants to tie up the target’s resources in litigation. If the target’s emotional and financial resources are dominated by the lawsuit, then she is unable to continue the public debate. So, the filer demands redress into the millions, drags out discovery, and generally makes life miserable until the target either recants or simply shuts up. The filer then quietly withdraws the suit, and continues in whatever public issue or debate sparked the confrontation in the first place. Even after the lawsuit is dropped, the target is left rattled and defeated, unable or unwilling to continue the public fight. What is more, others who may share the target’s views on the public issue or debate are intimidated into silence by the prospect of winding up in a multi-million dollar lawsuit with the filer.”
Roth, supra note 24, at 745–47.
26. See Ariz. Rev. Stat. Ann. §§ 12-751–752 (2016); Ark. Code Ann. §§ 16-63-501–508 (2005); Cal. Civ. Pro. Code § 425.16 (West Supp. 2016); Conn. Gen. Stat. § 52–196a (2019); H.B. 1324, 72nd Gen. Assem., 1st Sess. (Colo. 2019); Del. Code Ann. tit. 10, §§ 8136–8138 (2013); D.C. Code Ann. §§ 16-5501–16-5505 (Supp. 2016); Fla. Stat. Ann. § 720.304(4) (West 2015); id. § 768.295 (West 2011 & Supp. 2016); Ga. Code Ann. §§ 9-11-11.1, 51-5-7(4) (Supp. 2016); Haw. Rev. Stat. §§ 634F-1–634F-4 (LexisNexis 2012); 735 Ill. Comp. Stat. Ann. 110/15–110/25 (West 2011); Ind. Code Ann. §§ 34-7-7-1–34-7-7-10 (West 2011); Kan. Stat. Ann. § 60-5320 (2016); La. Code Civ. Proc. Ann. art. 971 (Supp. 2016); Me. Rev. Stat. Ann. tit. 14, § 556 (West Supp. 2015); Md. Code Ann., Cts. & Jud. Proc. § 5-807 (LexisNexis 2013); Mass. Gen. Laws Ann. ch. 231, § 59H (West 2000); Minn. Stat. Ann. §§ 554.01–554.05 (West 2010 & Supp. 2015); Mo. Ann. Stat. § 537.528 (West Supp. 2016); Neb. Rev. Stat. §§ 25-21, 241–25-21, 246 (2010); Nev. Rev. Stat. Ann. §§ 41.635–41.670 (LexisNexis 2013); N.M. Stat. Ann. § 38-2-9.1 (2016); N.Y. Civ. Rights Law §§ 70-a, 76-a (McKinney 2009); N.Y. C.P.L.R. 3211(g) (McKinney 2016); Okla Stat. tit. 12, §§ 1430–1440 (Supp. 2014); Or. Rev. Stat. Ann. §§ 31.150-31.155 (2003); 27 Pa. Cons. Stat. Ann. §§ 7707, 8301--8303 (West 2011); R.I. Gen. Laws §§ 9-33-1-9-33-4 (2012); Tenn. Code Ann. §§ 4-21-1001–4-21-1004, 20-17-101–20-17-110 (2019); Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011 (West 2015); Utah Code Ann. §§ 78B-6-1401–78B-6-1405 (LexisNexis 2012); Vt. Stat. Ann. tit. 12, § 1041 (Supp. 2015); Va. Code § 8.01-223.2; Wash. Rev. Code Ann. §§ 4.24.510–4.24.520 (West 2005 & Supp. 2016).
27. Ariz. Rev. Stat. Ann. §§ 12-751–752 (2016); Ark. Code Ann. §§ 16-63-501–508 (2005); Cal. Civ. Pro. Code § 425.16 (West Supp. 2016); Conn. Gen. Stat. § 52–196a (2019); H.B. 1324, 72nd Gen. Assem., 1st Sess. (Colo. 2019); D.C. Code Ann. §§ 16-5501–16-5505 (Supp. 2016); Ga. Code Ann. §§ 9-11-11.1, 51-5-7(4) (Supp. 2016); Kan. Stat. Ann. § 60-5320 (2016); La. Code Civ. Proc. Ann. art. 971 (Supp. 2016); Me. Rev. Stat. Ann. tit. 14, § 556 (West Supp. 2015); Md. Code Ann., Cts. & Jud. Proc. § 5-807 (LexisNexis 2013); Mass. Gen. Laws Ann. ch. 231, § 59H (West 2000); Minn. Stat. Ann. §§ 554.01–554.05 (West 2010 & Supp. 2015); Mo. Ann. Stat. § 537.528 (West Supp. 2016); Neb. Rev. Stat. §§ 25-21, 241–25-21, 246 (2010); Nev. Rev. Stat. Ann. §§ 41.635–41.670 (LexisNexis 2013); N.M. Stat. Ann. § 38-2-9.1 (2016); Okla Stat. tit. 12, §§ 1430–1440 (Supp. 2014); 27 Pa. Cons. Stat. Ann. §§ 7707, 8301–8303 (West 2011); Tenn. Code Ann. §§ 4-21-1001–4-21-1004, 20-17-101–20-17-110 (2019); Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001–27.011 (West 2015); Vt. Stat. Ann. tit. 12, § 1041 (Supp. 2015); Va. Code § 8.01-223.2; Wash. Rev. Code Ann. §§ 4.24.510–4.24.520 (West 2005 & Supp. 2016).
28. Del. Code Ann. tit. 10, §§ 8136-8138 (2013); Fla. Stat. Ann. § 720.304(4) (West 2015); id. § 768.295 (West 2011 & Supp. 2016); Haw. Rev. Stat. §§ 634F-1–634F-4 (LexisNexis 2012); 735 Ill. Comp. Stat. Ann. 110/15–110/25 (West 2011); Ind. Code Ann. §§ 34-7-7-1–34-7-7-10 (West 2011); Or. Rev. Stat. Ann. §§ 31.150–31.155 (2003); R.I. Gen. Laws §§ 9-33-1–9-33-4 (2012); Utah Code Ann. §§ 78B-6-1401–78B-6-1405 (LexisNexis 2012) follow existing civil procedure for a motion to dismiss or for summary judgment. However, New York is unique in that it treats the Anti-SLAPP right as a counterclaim and requires the defendant to follow the normal procedure and deadlines for counterclaims. See N.Y. Civ. Rights Law §§ 70-a, 76-a (McKinney 2009); N.Y. C.P.L.R. 3211(g) (McKinney 2016).
29. See Shannon Hartzler, Protecting Informed Public Participation: Anti-SLAPP Law and the Media Defendant, 41 Val. U. L. Rev. 1235, 1242 (2007).
30. Ark. Code Ann. §§ 16-63-501–508 (2005); Cal. Civ. Pro. Code § 425.16 (West Supp. 2016); Conn. Gen. Stat. § 52–196a (2019); H.B. 1324, 72nd Gen. Assem., 1st Sess. (Colo. 2019); D.C. Code Ann. §§ 16-5501–16-5505 (Supp. 2016); Ga. Code Ann. §§ 9-11-11.1, 51-5-7(4) (Supp. 2016); Haw. Rev. Stat. §§ 634F-1–634F-4 (LexisNexis 2012); 735 Ill. Comp. Stat. Ann. 110/15–110/25 (West 2011); Ind. Code Ann. §§ 34-7-7-1–34-7-7-10 (West 2011); Kan. Stat. Ann. § 60-5320 (2016); La. Code Civ. Proc. Ann. art. 971 (Supp. 2016); Me. Rev. Stat. Ann. tit. 14, § 556 (West Supp. 2015); Md. Code Ann., Cts. & Jud. Proc. § 5-807 (LexisNexis 2013); Mass. Gen. Laws Ann. ch. 231, § 59H (West 2000); Minn. Stat. Ann. §§ 554.01–554.05 (West 2010 & Supp. 2015); Mo. Ann. Stat. § 537.528 (West Supp. 2016); Nev. Rev. Stat. Ann. §§ 41.635–41.670 (LexisNexis 2013); Okla Stat. tit. 12, §§ 1430–1440 (Supp. 2014); Or. Rev. Stat. Ann. §§ 31.150–31.155 (2003); 27 Pa. Cons. Stat. Ann. §§ 7707, 8301–8303 (West 2011); R.I. Gen. Laws §§ 9-33-1–9-33-4 (2012); Tenn. Code Ann. §§ 4-21-1001–4-21-1004, 20-17-101–20-17-110 (2019); Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001–27.011 (West 2015); Utah Code Ann. §§ 78B-6-1401–78B-6-1405 (LexisNexis 2012); Vt. Stat. Ann. tit. 12, § 1041 (Supp. 2015).
31. See Hartzler, supra note 29, at 1242.
32. See id. at 1260–70.
33. See id. at 1253–60.
34. See id. at 1248–52.
35. Ariz. Rev. Stat. Ann. §§ 12-751–752 (2016); Ark. Code Ann. §§ 16-63-501–508 (2005); Cal. Civ. Pro. Code § 425.16 (West Supp. 2016); Conn. Gen. Stat. § 52–196a (2019); H.B. 1324, 72nd Gen. Assem., 1st Sess. (Colo. 2019); D.C. Code Ann. §§ 16-5501–16- 5505 (Supp. 2016); Fla. Stat. Ann. § 720.304(4) (West 2015); id. § 768.295 (West 2011 & Supp. 2016); Ga. Code Ann. §§ 9-11-11.1, 51-5-7(4) (Supp. 2016); Haw. Rev. Stat. §§ 634F-1–634F-4 (LexisNexis 2012); 735 Ill. Comp. Stat. Ann. 110/15–110/25 (West 2011); Ind. Code Ann. §§ 34-7-7-1–34-7-7-10 (West 2011); Kan. Stat. Ann. § 60-5320 (2016); La. Code Civ. Proc. Ann. art. 971 (Supp. 2016); Mass. Gen. Laws Ann. ch. 231, § 59H (West 2000); Minn. Stat. Ann. §§ 554.01– 554.05 (West 2010 & Supp. 2015); Mo. Ann. Stat. § 537.528 (West Supp. 2016); Nev. Rev. Stat. Ann. §§ 41.635–41.670 (LexisNexis 2013); N.M. Stat. Ann. § 38-2-9.1 (2016); Okla Stat. tit. 12, §§ 1430–1440 (Supp. 2014); Or. Rev. Stat. Ann. §§ 31.150–31.155 (2003); 27 Pa. Cons. Stat. Ann. §§ 7707, 8301–8303 (West 2011); R.I. Gen. Laws §§ 9-33-1–9-33-4 (2012); Tenn. Code Ann. §§ 4-21-1001–4-21-1004, 20-17-101–20-17-110 (2019); Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001–27.011 (West 2015); Vt. Stat. Ann. tit. 12, § 1041 (Supp. 2015); Va. Code § 8.01- 223.2; Wash. Rev. Code Ann. §§ 4.24.510–4.24.520 (West 2005 & Supp. 2016); see also Hartzler, supra note 29, at 1242. Del. Code Ann. tit. 10, §§ 8136-8138 (2013); Me. Rev. Stat. Ann. tit. 14, § 556 (West Supp. 2015); Md. Code Ann., Cts. & Jud. Proc. § 5-807 (LexisNexis 2013); Neb. Rev. Stat. §§ 25-21, 241–25- 21, 246 (2010); N.Y. Civ. Rights Law §§ 70-a, 76-a (McKinney 2009); N.Y. C.P.L.R. 3211(g) (McKinney 2016); Utah Code Ann. §§ 78B-6-1401–78B-6-1405 (LexisNexis 2012) merely permit the award of attorney fees rather than require such an award
36. Alabama, Alaska, Idaho, Iowa, Kentucky, Michigan, Mississippi, Montana, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, South Carolina, South Dakota, West Virginia, Wisconsin, and Wyoming have no anti-SLAPP statute. See also supra note 23.
37. See Hartzler, supra note 29, at 1248–60.
38. 28 U.S.C. § 2679(b)(1) (2018). The Westfall Act “preclude[s]” any suit brought against a federal employee acting within the scope of their office or employment other than those brought under the Federal Torts Claims Act against the United States. 28 U.S.C. § 1346(b) (2018); see, e.g., Nietert v. Overby, 816 F.2d 1464 (10th Cir.1987) (holding that a federal employee had absolute immunity from suit as a whistleblower because she was acting within the scope of her official duties); West v. Rieth, No. 16-30919, 2017 U.S. App. LEXIS 12316 (5th Cir. July 10, 2017) (unpublished opinion) (holding that the district court did not err when it found that plaintiff, a Marine, failed to present sufficient evidence to rebut Westfall Act immunity with regards to his claim that fellow Marines falsely reported to command that he sexually assaulted them).
39. 28 U.S.C. § 2679(b)(1) (2018).
43. See Restatement (Second) of Torts § 588 (1977) (privilege of absolute immunity to witnesses for communications preliminary to a proposed judicial proceeding). “Privilege permits conduct that would ordinarily be actionable to avoid liability because the defendant’s act furthers an important public interest which deserves protection at the expense of harm to the plaintiff’s reputation. There are two types of privilege: (1) absolute privilege and (2) qualified privilege.” Tara Blake Garfinkel, Jurisdiction Over Communication Torts: Can You be Pulled into Another Country’s Court System for Making a Defamatory Statement Over the Internet? A Comparison of English and U.S. Law, 9 Transnat’l Law 489, 513-514 (1996). “[S]tatements made by those participating in a judicial proceeding are absolutely privileged. . . . Absolute privilege has been significantly expanded and is no longer limited to formal pleadings and in-court communications, but includes any communication pertinent to pending litigation.” John B. Lewis & Lois J. Cole, Defamation Actions Arising from Arbitration and Related Dispute Resolution Procedures–Preemption, Collateral Estoppel and Privilege: Why the Absolute Privilege Should Be Expanded, 45 DePaul L. Rev. 677, 687-688 (1996).
44. See Restatement (Second) of Torts §§ 588, 595, 598, 890 (1977 and 1979) (common law privileges of absolute or qualified immunity relevant to putative victims); Unif. R. Evid. 502-505 (evidentiary privileges under the common law relevant to putative victims). Fed. R. Evid. 501 provides that federal common law governs all rules of privilege unless there is overriding federal law, but that in civil cases, the controlling state law governs privilege regarding a claim or defense for which state law supplies the rule of decision, i.e. in the case of a state law claim brought under diversity jurisdiction.
45. See supra note 26.
46. See Kingkade, supra note 7.
47. A frequently heard complaint by civil litigants in federal court is the lack of active judicial management of the discovery process. The Honorable Paul W. Grimm & David S. Yellin, A Pragmatic Approach to Discovery Reform: How Small Changes can Make a Big Difference in Civil Discovery, 64 S.C. L. Rev. 495, 505–06 (2013). The Federal Rules of Civil Procedure provide as follows:
“The scope of discovery is stated in Rule 26(b)(1) of the Federal Rules of Civil Procedure. Last amended substantively in December 2000, it creates a two-tiered approach to what can be discovered in a civil action. A party may discover as a matter of right ‘any nonprivileged matter that is relevant to any party’s claim or defense,’ subject to certain additional limitations to be described below. Thereafter, it may discover information more broadly described as ‘relevant to the subject matter involved in the action’ only upon a showing of ‘good cause.’ Furthermore, information that falls within the scope of discovery, as provided by the rule, ‘need not be admissible at trial if [it] appears reasonably calculated to lead to the discovery of admissible evidence.’”
Id. at 514. As of 2014, there are twenty-three so-called replica jurisdictions that have adopted the Federal Rules of Civil Procedure; another four jurisdictions with similar rules that are set out in statutory codes; three jurisdictions that “show strong affinity to the content and organization of the Federal Rules”; and three jurisdictions replicate many of the Federal Rules of Civil Procedure, except they utilize fact pleading rather than notice pleading. John P. Sullivan, Do the New Pleading Standards Set Out in Twombly and Iqbal Meet the Needs of the Replica Jurisdictions?, 47 Suffolk L. Rev. 53, 54 (2014).
48. See MCM, supra note 4, Mil. R. Evid. 613, 801(d)(1)(A).
49. Compare supra notes 3-4 (description of the discovery tools available to the defense in a courts-martial) with supra note 47 (discovery process in civil litigation).
50. See United States v. Sarras, 575 F.3d 1191, 1214–15 (11th Cir. 2009) (holding prosecution had no duty to obtain the computers and camera of the complainant and her mother and certain medical records of the complainant which were not in its possession, since “the government does not have a duty to disclose items it does not possess” and defense could have attempted to utilize the subpoena process). “It should be remembered that there is no constitutional right to discovery and that the rules or analyses applicable to the pretrial access of information may differ from those applicable to a defendant’s trial right of information since a defendant at trial has certain constitutional rights, such as confrontation and compulsory process, which are absent during pretrial proceedings.” 1 Paul DerOhannesian II, Sexual Assault Trials § 1.4 (Matthew Bender ed., 4th ed., 2019). With regards to procurement of evidence at trial, “Rule 703 necessarily presumes that the defense will be able to adequately interview the witness in order to set forth an adequate synopsis, and the courts may be expected to be particularly hostile to a witness request made without any contact with the given witness.” Francis A. Gilligan & Frederic I. Lederer, Court-Martial Procedure § 20-22.20 (Matthew Bender ed., 4th ed., 2018). See also Francis A. Gilligan & Frederic I. Lederer, Court-Martial Procedure §§ 20-22.40, 20-22.70, 20-22.71, 20-22.72 (Matthew Bender ed., 4th ed., 2018).
51. See generally Kimberly J. Winbush, Annotation, Pendency of Criminal Prosecution as Ground for Continuance or Postponement of Civil Action to Which Government Is Not Party Involving Facts or Transactions upon Which Prosecution Is Predicated—Federal Cases, 34 A.L.R. Fed. 2d 85 (2018); Kimberly J. Winbush, Annotation, Pendency of Criminal Prosecution as Ground for Continuance or Postponement of Civil Action Involving Facts or Transactions upon which Prosecution Is Predicated—State Cases, 37 A.L.R. Fed. 6th 511 (2018).
52. See MCM, supra note 4, Mil. R. Evid. 304, 613, 801(d)(1)(A), 801(d)(2).
53. “Silence may constitute an admission when it does not involve a reliance on the privilege against self-incrimination or related rights. Rule 301(f)(3). For example, if an imputation against a person comes to his or her attention under circumstances that would reasonably call for a denial of its accuracy if the imputation were not true, a failure to utter such a denial could possibly constitute an admission by silence. Note, however, in this regard, Rule 304(h)(3), and Rule 801(a)(2).” Manual for Courts-Martial, United States, App. 22-11 – 22-12 (2016). Compare Doyle v. Ohio, 426 U.S. 610 (1976) and United States v. Hale, 422 U.S. 171 (1975) with Jenkins v. Anderson, 447 U.S. 231 (1980) and Anderson v. Charles, 447 U.S. 404 (1980). See also United States v. Noel, 3 M.J. 328, 330-331 (C.M.A. 1977) (dicta). In essence, silence may be introduced as evidence from which a negative inference can be drawn when the alleged perpetrator is not in custody or in court during a preliminary hearing or trial and it would be reasonable for him or her to deny the accuracy of evidence presented against him or her. A civil defamation lawsuit against the putative victim meets this criteria if the alleged perpetrator does not offer into evidence any specific facts showing actual dishonesty in opposition to an anti-SLAPP motion to dismiss (or strike) or motion for summary judgment. The alleged perpetrator has initiated the lawsuit and bears the burden of proving any claims and/or overcoming any affirmative defenses; therefore, he or she cannot rely on the Fifth Amendment to shield his or her silence. Military Rule of Evidence 301(f)(2) is no bar to the admission of pretrial silence by the alleged perpetrator while not in custody or a preliminary hearing. MCM, supra note 4, Mil. R. Evid. 301(f)(2). Mil. R. Evid. 304 also permits such evidence to be used for impeachment purposes if the alleged perpetrator takes the stand in the court-martial and asserts facts in their defense not raised in the defamation litigation. MCM, supra note 4, Mil. R. Evid. 304.
54. See, e.g., United States v. Rylander, 460 U.S. 752, 758 (1983).
55. See supra note 51; see, e.g., Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (10th Cir. 1979).
56. See Hiroshi Motomura, Using Judgments as Evidence, 70 Minn. L. Rev. 979 (1986). A general officer letter of reprimand or non-judicial punishment will not provide either collateral estoppel or issue preclusion under state law and is also inadmissible as hearsay. See id.; Fed. R. Evid. 801(c).
57. See id.; U.S. Dep’t of Army, Reg. 135-178, Enlisted Administrative Separations para. 3-18 (7 Nov. 17); U.S. Dep’t of Army, Reg. 635-200, Active Duty Enlisted Administrative Separations para. 2-12 (19 Dec. 16).
58. See Motomura, supra note 56; U.S. Dep’t of Army, Reg. 135-175, Separation of Officers, para. 2-26, 6-12 (29 Nov. 17); U.S. Dep’t of Army, Reg. 600-8-24, Officer Transfers and Discharges, para. 4-15, 4-20 (12 Apr. 06).
59. Federal Rule of Evidence 801(c) defines hearsay as a “statement, other than one made by the declarant while testifying at the current trial or the hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c).
60. See David A. Anderson, Rethinking Defamation, 48 Ariz. L. Rev. 1047 (2006).
61. See Restatement (Second) of Torts § 581A (1977); Meiring de Villiers, Substantial Truth in Defamation Law, 32 Am. J. Trial Advoc. 91 (2008).
62. For a discussion of the professional and ethical challenges facing defense attorneys when representing clients who unreasonably insists they are innocent, see Abbe Smith, Defending Defending: The Case for Unmitigated Zeal on Behalf of People Who Do Terrible Things, 28 Hofstra L. Rev. 925–61 (2000).
63. George M. Cohen refers to a “blind spot in the ethics rule architecture” with regards to multiple lawyers representing a client. See George M. Cohen, The Multilawyered Problems of Professional Responsibility, 2003 U. Ill. L. Rev. 1409, 1411 (2003).
64. See Grace M. Giesel, Client Responsibility for Lawyer Conduct: Examining the Agency Nature of the Lawyer-Client Relationship, 86 Neb. L. Rev. 346 (2007) (describing cases where attorneys were named as parties in abuse of process counterclaims and attorney-client privilege did not necessarily bar discovery even while the underlying litigation was ongoing).
65. “First, unlike civilian trials, military trials and their outcomes are minimally visible to the public. Civilian courts are presumptively open: absent special circumstances, trials and court filings are open to the public and anyone can walk into a federal or state courthouse and ask to read a case file for any reason. The military justice system, on the other hand, makes it hard for the public to learn about trials. Military trials may be technically open to the public, but these trials are held on military bases—bases that are rarely, if ever, open to the general public. Further, the military only makes brief trial results available to the public; court records and documents related to them will only be released after repeated Freedom of Information Act requests, appeals, fees, and often months of waiting. This would be less problematic if military trial court decisions were available on major legal databases like Westlaw and LexisNexis. Unfortunately, only military appellate decisions are included in reporters. This opacity is far from ideal because openness in a justice system ‘is designed to provide accountability.’” Brady, supra note 4, at 214–15.
66. “[E]xcept for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.” Model Rules of Prof’l Conduct r. 3.8(f) (2002).
67. SVC Handbook, supra note 14, at 21.
68. See Model Rules of Prof’l Conduct r. 3.6(a)-(b) (2002) (“(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a), a lawyer may state . . . information contained in a public record . . . .”). See also Michael Downey, Ethical Rules for Litigating in the Court of Public Opinion, A.B.A. Litig. 2012, https://www.americanbar.org/groups/litigation/committees/ethics-professionalism/articles/2012/summer2012-0712-ethical-rules-litigating-court-public-opinion/.
69. See Model Rules of Prof’l Conduct r. 3.6(c) (2002) (“[A] lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.”); see also Downey, supra note 68.
70. See DerOhannesian II, supra note 50, §§ 2.35, 2.36.
71. See John C. Meringolo, The Media, the Jury, and the High-Profile Defendant: A Defense Perspective on the Media Circus, 55 N.Y.L. Sch. L. Rev. 981 (2010/11).
72. Based on strategic leaks of information orchestrated by the defense team, the media skewered the alleged victim in the Kobe Bryant case, portraying her as promiscuous and out to collect a large civil judgment from a wealthy celebrity, until she decided that she was no longer interested in cooperating with the prosecution. In this case, the defense successfully aired a competing narrative, and Kobe Bryant walked free. See T.R. Reid, Rape Case Against Bryant Is Dropped, Accuser Decided Against Testifying, Wash. Post (Sept. 2, 2004).
73. See MCM, supra note 4; Mil. R. Evid. 304, 613, 801(d)(1)(A), 801(d)(2).
74. See supra note 53.
75. See Gilligan & Lederer, supra note 50, § 23-44.51.
76. See id. § 23-53.70.
77. See id. § 12-25.10, 12-25.19(d); cf. id. § 23-12.00.
78. See, e.g., Roxanne Jones, Should False Rape Accusers Be Sued?, CNN (Dec. 17, 2013, 7:52 ET), https://www.cnn.com/2013/12/17/opinion/jones-rape-claim-lawsuits/index.html.