It happened almost four years ago, but the pain for Adrian Perry was still brutal last week as she spoke through tears on the phone about how her young daughters had been sexually abused.

It is a personal story that dramatizes a policy debate.

The abuse had happened in the summer of 2016, at Camp Lejeune in North Carolina, when her twin girls had just turned 6 and an older daughter was 10.

Her husband’s former boss, Marine Corps Col. Daniel Wilson, had abused the twins, with one of the girls victimized on multiple occasions, Perry said.

It had happened during several of the periodic visits Perry and her girls paid to the home of Wilson and his wife. Perry found out about it later, she said, from her kids.  

Wilson, it turned out, had digitally penetrated one of the twins and had licked and spanked both of them while Perry was in another room. He had offered alcohol, which he called his “apple juice,” to all three children, she said.

“Finding out our daughter’s innocence was stolen from her at 6 years old was one of those things that knocks you off your feet,” she said. “It knocks the wind out of you.”

Making the case more perverse, she said, was that Wilson had been something of a mentor to her husband.

“How do you ever trust after that?” she asked. 

Wilson was charged with raping a child, abusing a child and other allegations, including that he sexually assaulted a woman in an unrelated incident. 

He was convicted in 2017 of the child sexual abuse charge, conduct unbecoming an officer and being absent without leave. 

However, last July, after Wilson had served roughly two years of a five-year prison term, a three-judge panel of the Navy-Marine Corps Court of Criminal Appeals reversed the child abuse conviction. The appellate judges cited “inconsistencies” they said they found reading a transcript of one of the twin girls’ testimony. 

“It was like we had been sent backwards in our healing,” recalled Perry, who is now an advocate for abuse victims.

Attempts to reach Wilson’s attorney were not immediately successful.

‘Factual sufficiency’

Wilson’s case has gotten considerable attention, especially in the military press. But it is particularly relevant now to a congressional debate that will heat up in a few weeks, when the Armed Services committees write their fiscal 2021 defense authorization bill, the NDAA. 

The appellate panel in the Perry family’s case had no choice, under military rules, but to essentially hold a second trial and re-litigate the evidence.

This requirement applies to the criminal appeals courts of the Army, Air Force, Navy-Marine Corps and Coast Guard. They must review not just the legalities of their cases — whether evidence was admitted properly and the like — but also the “factual sufficiency” of lower court decisions.

Civilian appellate courts are typically looking out for egregious factual errors or lack of evidence when they review lower court rulings, legal experts say. They are not asking anew, as military appellate courts are, whether the person is guilty beyond a reasonable doubt, with only slight deference to the lower court’s work.

This approach is virtually unique to the military appellate system, experts said.

“The military system is remarkably different, but not in a way that advances the cause of justice,” said Mary Rose Hughes, an attorney in private practice who represents military sexual assault victims on a pro bono basis. 

What’s more, especially in sexual assault cases, which typically are “he said-she said” affairs with no other witnesses, the appellate courts make their determinations without hearing and seeing directly the testimony of people such as Perry’s children — a key element in such courts-martial, legal experts say.

The factual sufficiency requirement at the military’s appellate level “is an artifact of an earlier era when courts-martial were not presided over by judges and the counsel were not always lawyers,” said Eugene R. Fidell, who teaches military justice at Yale Law School. “It really belongs in a museum.”

Overturning a conviction is not routine, but it happens. The Army appellate court overturned 16 convictions in fiscal 2018, and half were sexual assault cases, according to a Senate aide who has reviewed the records.

Last June, one month before Wilson’s conviction was overturned, a similar case exploded into public view. 

An Army appeals court, operating under the same dictate to effectively retry a case, threw out the 2016 conviction of Jacob Whisenhunt, a West Point cadet who had allegedly raped another cadet in her nearby sleeping bag during field training. 

Not every reversal of a conviction is unjust. But every one deeply affects someone’s life.

NDAA debate set

Four years ago, the Senate Armed Services Committee adopted a provision that would significantly reduce the power of military appeals courts to second-guess earlier court rulings. But the House rejected it in conference, and it never made it into law. 

This year, some members say they will try again. They are led by Rep. Jackie Speier of California and Sen. Kirsten Gillibrand of New York, both Democrats. 

They will offer several amendments intended to aid victims of sexual assault in the military when the Armed Services committees write their authorization bills, probably next month.

But the change to the military appellate process, which would affect not just sex crimes but all of them, is among the most consequential. 

Removing the factual sufficiency requirement from appellate reviews so they would operate just like civilian appeals courts “will go a long way towards improving the trust that sexual assault survivors have in the military justice system,” Gillibrand told CQ Roll Call in a statement.

Those who support the change in appellate rules and those who oppose them agree that it would be a major change in how the services’ appellate courts function. 

“It would recalibrate the balance in military courts in favor of the prosecution,” Fidell said.

Resistance expected

Jessica Maxwell, a Pentagon spokeswoman, said officials there prefer to wait to see the language of any proposed change before weighing in. Several senior Republican Armed Services members had a similar response. 

Don Christensen, president of Protect Our Defenders, a group that advocates on behalf of military victims of sexual offenses, said changing the factual sufficiency rule is his group’s top legislative priority this year. But he expects resistance from the Pentagon and some lawmakers. 

The military has traditionally been slow to accept changes in its courts-martial. And defense attorneys who practice in that system contend that the services’ appeals courts’ ability to reconsider all the evidence anew in a case is a powerful protection for the accused. 

“The leadership in the Pentagon is very cold and callous when it comes to ensuring victims have equal access in the process,” said Christensen, a retired Air Force colonel who was formerly the service’s chief prosecutor. 

Speier, who chairs the House Armed Services Subcommittee on Military Personnel, said there is much more work to be done to protect servicemembers from assault.

“Until DoD backs up their talk with action, they will fail to live up to their core values of duty, integrity, ethics, honor, courage, and loyalty,” Speier told CQ Roll Call in a statement.

Uphill struggle 

The military, despite a stronger focus on sexual assault, is still struggling mightily to reduce it, as is the larger society. 

A fiscal 2018 survey of military personnel revealed that fully 20,500 sexual assaults occurred in the ranks that year, the most recent year for which data is available. Nearly three-quarters of these attacks are not reported, according to official statistics. 

Only a tiny fraction of the assailants is ever convicted — just 108 in fiscal 2018, fewer than half as many as in fiscal 2015.

Even the small number of convictions are occasionally overturned.

Yet the rights of defendants in such cases must also be protected, and the Trump administration has made that a cause. This month, for example, the Education Department proposed revising rules for campuses that would strengthen protections for the accused. 

Defense attorneys’ worries

To some, mainly defense attorneys, deleting or diluting the factual sufficiency requirement would be ill-advised. They say the military justice system generally favors the government, and the factual-sufficiency test at the appellate level is one of the only counterweights that favor the accused. 

In a civilian court it takes all 12 jurors to convict a defendant, these attorneys point out. But panels of military jurors, known as “members,” may be smaller, and they are chosen by the officer who has convened the court-martial.

“The ability of the appellate court to review for factual sufficiency is one of the counterbalances that offset that unfairness,” said William Cassara, an experienced defense attorney in military courts. “And cases are reversed for factual sufficiency very rarely.”

Philip Cave, another defense attorney, called the factual sufficiency review “one of the few bulwarks against insufficient convictions.”

Lasting fear

If a conviction is overturned by one of the services’ courts, there is no other level of appeal based on the evidence. The highest appeal court in the military system, the Court of Appeals of the Armed Forces, only considers cases based on whether they meet all the legal standards and procedures.

Adrian Perry said the reversal of a conviction in a case like her family’s is especially painful. 

“When you go through something horrific and traumatic like this, getting justice opens a door to healing,” she said. “When that is taken away, it stops you dead in your tracks. It’s devastating.”

The family now lives in Okinawa, Japan, where her husband, Breck, is stationed.

She said that one of her now 10-year-old twin daughters tells her mother that, though she wants to return to the U.S. to see family, she fears she might see her assailant again.