Former patients file complaints against U.S. Army amid sexual assault probe

CLARE HYMES
November 16, 2023

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Lawyers representing former patients of a military doctor at the center of a widening sexual assault case say they have filed five new federal civil complaints against the Army and the Defense Department Monday for failing to protect them from abuse.

The claims follow a decision by the doctor's defense attorneys to bypass a preliminary hearing in the criminal matter, claiming the case is a "witch hunt" and accusing military prosecutors of plotting to "ambush the defense" with information related to three additional accusers.

The physician, Maj. Michael Stockin, is facing allegations of improper touching from at least 39 alleged victims.  Attorneys for the doctor's alleged victims say they believe more patients could step forward, and the prosecution could grow to become one of the largest military sexual assault cases in history. Stockin says he has been wrongly accused and is innocent.

Stockin, an anesthesiologist at Madigan Army Medical Center on Joint Base Lewis McChord, in Washington, has been suspended from patient care.

Five of Stockin's former patients who are among the accusers spoke with CBS News on the condition they not be identified because of the nature of the ongoing case. They each described a similar pattern. During appointments at the center's pain management clinic, Stockin, when left alone with patients, would instruct them to undress, and proceed to examine their lower body and touch them inappropriately, according to the alleged victims.

Article 32 preliminary hearing

The Article 32 preliminary hearing, which an accused party is allowed to waive, provides a chance for prosecutors to showcase evidence that supports the charges. If the hearing officer agrees there is probable cause, the case is referred to the commander who determines whether the case will go to court martial.

Robert Capovilla, an attorney for Stockin, said his client opted out of the preliminary hearing because "each alleged victim refused to testify about the facts of this case and answer the Defense team's questions."

He added, "The government initially refused to produce as witnesses the law enforcement agents who conducted this witch hunt against Major Stockin, claiming that those witnesses were not relevant." And Capovilla said he believes the government intended to "ambush" his client with information about more accusers at the hearing.

The Army declined to respond to the defense's claims, citing the ongoing investigation. Alleged victims have a statutory right not to testify at preliminary hearings, and given changes to the process in the last decade, it has become rare for them to do so. Typically, they testify during the court martial.

The Article 32 hearing had been scheduled to take place on Joint Base Lewis McChord, in Washington state, last Thursday. The hearing is akin to a grand jury process in civilian courts in which prosecutors are required to show probable cause, however the process differs procedurally. In military procedure, the accused party is charged before a preliminary hearing is held to determine probable cause.

Ryan Guilds, an attorney representing several of Stockin's accusers in the criminal matter, disputed the defense's claim that the alleged victims had "refused" to testify at the hearing, noting that they were not contacted to do so, and that having accusers take the witness stand at this stage is atypical.

"The time for discovery and cross examination will come," Guilds said in a statement. "It's called trial. And my clients are very much looking forward to that day."

Former Army special victim prosecutor Meghan Tokash explained that there are several reasons why it has become uncommon for law enforcement or victims to testify at these preliminary hearings, including that testimony at an Article 32 is taken under oath.

"Inconsistencies in that testimony may be fodder for cross examination at trial," says Tokash, a member of the defense secretary's 2021 Independent Review Commission on Sexual Assault in the Military. "In lieu of testimony from victims and other witnesses, a prosecutor might submit alternative forms of evidence, such as recorded or written statements to law enforcement, for the preliminary hearing officer's consideration."

Others, however, argue that it should not be as uncommon for victims to testify at the hearings, pointing out the merit of establishing the evidence on the record.

"I think it's a missed opportunity," said retired Col. Don Christenson, a former chief prosecutor for the Air Force and Air Force judge. "There can be a benefit to having the accused sitting there hearing victim after victim after victim say 'this guy did this to me.'"

The Article 32 process has been scrutinized in recent years for functioning as a "rubber stamp."  In a June 2023 report, the Defense Advisory Committee on Sexual Assault in the Military found that the military had even been sending sexual assault cases to court martial after a hearing officer found no probable cause. Many of those cases ended in acquittal.

The report concluded that Article 32 hearings have not provided "a meaningful screening mechanism for preferred charges and are failing to effectively inform the referral decision," and it called for congressional intervention to fix "systemic problems" in the criminal pretrial process.

The Army has not made the charging sheet publicly available, but Army officials have confirmed to CBS News that Stockin faces charges of abusive sexual contact and indecent viewing in violation of military law. Seventeen more accusers were included in additional charges brought by the government last month. Experts and advocates who work with survivors, tell CBS News they anticipate more alleged victims could still come forward. Since the investigation remains ongoing, if more charges are added, another Article 32 hearing will be convened on the new specifications.

Lt. Col. Jennifer J. Bocanegra, an Army spokesperson, emphasized that "Maj. Stockin is presumed innocent until proven guilty at trial."

The Army says the charges are now in the hands of Stockin's brigade commander. It's unclear when the case will be set for trial.

Over the summer President Biden signed an executive order that changes the Uniform Code of Military Justice and transfers the decision to prosecute from commanders to specialized independent military prosecutors in cases of sexual assault, domestic violence, child abuse, murder and other serious crimes. This change comes after years of pressure on the military from Congress and victims' advocates to take commanders — who may have a bias in whether a case goes forward — out of prosecutorial decisions for major crimes, especially in cases of sexual assault. That change goes into effect in December.

"We look forward to receiving all of the discovery in the government's possession, and we will not settle for anything less than a fair trial," Capovilla said.

The civil complaints against the Army

Attorney Christine Dunn represents seven of Stockin's former patients who allege he abused them while in his care. She and her colleagues at the law firm Sanford Heisler Shard, have filed the civil complaints under the Federal Torts Claims Act, which allows individuals to bring claims against federal agencies for wrongs committed by personnel of that agency. The additional administrative complaints filed Monday are the first step toward filing a lawsuit for monetary damages.

CBS has reviewed six of the seven claims filed, and in each the alleged victims claim to have been "severely and irreparably harmed."

"Had the Army better screened Dr. Stockin when hiring him, or better supervised his patient interaction, Dr. Stockin would not have been in a position to sexually abuse me and other patients," some of the complaints say. "The fact that Dr. Stockin was able to sexually abuse so many patients is evidence that the Army was negligent in its supervision of Dr. Stockin."

Dunn has previously filed two other civil claims on behalf of Stockin's former patients that she says are now being investigated by the Army.

"These soldiers thought they could trust a U.S. Army doctor but he abused that trust in the most egregious way," Dunn said in a statement. "The massive scope of the sexual abuse indicates that the Army was negligent in supervising Dr. Stockin."

Under current law, servicemembers injured while on active duty are unable to sue the military. However, a 2022 ruling in the 9th circuit opened the door for survivors after the court found that sexual assault was not a "incident to military service."

"The recent filing of [civil] claims on behalf of five additional survivors emphasizes the ongoing bravery of those who share their stories and pursue justice," said Protect Our Defenders Senior Vice President, Josh Connolly. "It is imperative that the Army prioritizes transparency and treats all survivors with the dignity and respect they deserve."

The Army has six months to review the claims. An Army spokesperson declined to comment on the civil complaints, citing the ongoing investigation.