A New Legal Doctrine

 by Richard T. Hellinga 

After an investigation into a 2001 case in which a cadet claimed she was raped after an evening of drinking and strip poker, the Air Force academy declined to press charges. In explaining this judicial decision, the academy's commandant Brigadier-General Sylvanus Taco Gilbert III said:

 "When you put yourself in situations with increased risk you have to take increased precautions to mitigate those risks. If I walk down a dark alley with $100 bills hanging out of my pockets, it doesn't justify my being attacked or robbed, but I certainly  increased the risk by doing what I did." 

In light of the controversy about the way rape allegations are investigated at the Air Force Academy, it is clear that the Commandant's remarks demand broad-based reforms, not just within the academy, but within our country's justice system. Taken together, the academy's decision and the Commandant's explanation, we can see the emergence of a new sympathy for the rights of the accused. 

Most people expect this kind of support for the rights of the accused to spring from the ACLU. But who would have thought that it would be inside the Air Force academy, with its rigid organization and long tradition of honor in service to our country, where the seeds of a new legal theory would be planted and bear fruit? Just today (March 6, 2003) the Associated Press is reporting that an Air Force investigation has identified over 50 alleged cases of sexual assault. In the ten most recent years only two cadets have been charged with such a crime. One pled guilty. The other was acquitted. Countless others were never prosecuted for supposed lack of evidence. 

It's obvious that the cases remain unprosecuted because of this radical sympathy for the accused. I am sure that I am not alone in my desire to read a detailed treatise on this new legal doctrine, but unfortunately it appears that none of the prominent law reviews have featured one, nor have any of the cultural magazines printed one either. Until one is written, we will have to speculate. As far as the applying this new "mitigated risk" legal doctrine, we need to look no further than the Commandant himself. Given the Commandant's method for implementing justice and his own willingness to live by it, I am sure that he would agree that if he was robbed of his money in that dark alley (even unjustly) there would be no grounds to prosecute the robber. After all, if the Brigadier-General hadn't been in that alley tempting potential robbers by carrying all that money, then he would not have been robbed. By his own admission, he would not have done anything to mitigate the risk of a crime being perpetrated upon himself. 

By virtue of this new reasoning, it would seem that many of the so-called "victims" in this country have provided too much temptation for the so-called "criminals." It is apparent that the young men of the academy, lacking a male chastity belt for those times when young women do nothing to mitigate the provocative positions they often provide, can not be expected to control their sexual urges. Not even given the benefit of their intense military training in self-discipline, living by a code of honor, and following orders. If the country's most intelligent, skilled, and obedient young men can not exercise self-control, then what does this mean for the rest of us? 

In formulating his judgments, the Commandant seems to have shown the way for a new insight into our human condition. If his legal theories were adopted in our civilian court systems we would see a profound change in the way justice is decided. It's easy to imagine the following courtroom cross-examination taking place:

 Defense Attorney: "Did you own a Mercedes?" 

Alleged Victim: "Yes." 

Defense Attorney: "And you expected no one to want to steal it?"

 Alleged Victim: "Well, no, I mean, yes. I didn?t want it stolen but I do understand why someone would want to steal it." 

Defense Attorney: "Let the jury note that the victim has acknowledged that he provided my client with a temptation to steal the car and did nothing to mitigate the risk. The record shows the car the alleged victim owned was a luxury car, a Mercedes S600 Sedan, a make and model desired by many people. And he drove it in public for everyone to see. Ladies and Gentlemen of the jury, don't you all want a Mercedes? Do you know anyone who doesn't want a Mercedes? Wouldn't you carjack this man if he was driving his Mercedes around and flaunting it in public? The defense rests, your honor!"

 The Commandant's contribution to legal theory demands that we would find for the defense in such a case. But remember that this is just my humble attempt to explain the Commandant's thinking in more detail, a doctrine that has yet to move officially beyond the confines of the Air Force Academy. If there are other institutions that have been adhering to it, then I expect we will be hearing very soon from their representatives who will no doubt be proud to proclaim their support of this new legal doctrine. ===== ---------------------------------------------------------------------------------------------