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Sexual Assault and Military Justice

by David French

The political undermining of due process

The sexual-assault report came just after noon, right before a critical mission deep into the heart of al-Qaeda-controlled territory. A young soldier, a specialist, informed his first sergeant (the senior noncommissioned officer in his troop) that a sergeant first class had exposed himself, grabbed the young soldier, and demanded that he perform oral sex. The soldier claimed he twisted out of the grip of the sergeant first class, ran out of the room, and then proceeded straight to the first sergeant.

Despite the high tempo of combat operations, the command immediately launched a comprehensive investigation. There were no witnesses besides the two soldiers allegedly involved, and the sergeant first class tearfully denied any wrongdoing. He had a wife and kids, he said. Why would he assault another man? The guys thought he was gay, and he was tired of the rumors.

And what of the specialist? While his story was also delivered through tears, he demanded that he be removed from the unit and sent back stateside, away from Iraq. A number of soldiers said that the specialist had been profoundly unhappy and told other soldiers that he planned to get home — one way or the other.

So what happened? Was there a sexual assault? Or did a young soldier target another soldier he perceived to be gay and make a false complaint as part of a plan to be transferred home? After all, other soldiers had done more extreme things to go home, like shooting themselves in the foot. Or was the situation somewhere in the middle, an encounter neither as extreme nor or as innocent as either soldier claimed?

The command, utterly incapable of determining the truth, separated the soldiers, issued a no-contact order, and charged the senior NCOs with monitoring the situation to prevent any further incidents. Both men served out the remainder of their deployments honorably and returned home. Case closed.

I thought of this real-world story, in all its irresolvable ambiguity, when forced to watch The Invisible War last year while on a brief period of active duty. Designed to shine a light on the alleged crisis of sexual assault in the military, the film has been shown on Capitol Hill (outraging Congress), it’s been shown to the highest ranks of the military, and now it’s shown to virtually every soldier in the Army. Last year, I had to see it twice, and I’m a mere reservist.

It is a documentary that tells the heartrending stories of a series of alleged victims of sexual assault. Their tales of justice thwarted are undeniably powerful, but cherry-picking a few cases out of several decades of military life (some of the stories stretch back to the Vietnam era) presents a form of indictment-by-anecdote that makes for a good film but can lay the foundation for terrible public policy.

Perhaps aware of this shortcoming, the filmmakers end The Invisible War with statistics on the prevalence of sexual assault in the military, claiming that most “assault” is never prosecuted, most perpetrators get away with their crimes, and most victims suffer not only from the assault but also because of the military’s alleged indifference.

And, yes, at first glance the statistics are eye-popping. According to sexual-assault surveys, 26,000 men and women (mostly men) in the military claimed they were assaulted in 2011, up from 19,000 in 2010. Last fall, the military reported 3,553 actual sexual-assault complaints (the survey measures not just complaints but also alleged sexual assaults for which no complaints were filed) in the period October 2012 through June 2013, up 50 percent over the equivalent period the previous year. Of the 26,000 potential incidents of sexual assault in fiscal year 2011 (October 1, 2010, to September 30, 2011), 3,000 were reported and 300 were prosecuted, according to Time magazine.

But these statistics have profound problems. First, the surveys themselves count as a sexual assault any self-report of a sexual assault, regardless of its veracity or credibility or of any analysis of the underlying facts. So the young soldier’s story mentioned in the opening of this article would count as an unprosecuted sexual assault — an injustice. But was he actually assaulted? Who can know?

Second, some fraction of the sexual assaults reported in the broader survey numbers and narrower complaint numbers include incidents that occurred before the soldier joined the military.

Third, in the vast majority of cases, even if reported, the alleged sexual assault can’t be effectively prosecuted for reasons (such as the victim’s choice or a lack of evidence) that have nothing to do with any “breakdown” in military justice. “He said, she said” cases, often clouded by alcohol, with no outside witnesses and inconclusive physical evidence, are difficult for any justice system, not just the military justice system.

Finally, even with statistics inflated by self-reports that include pre-service assaults, the military is a far safer place for women than your typical college or university, where, according to one Department of Justice–funded study, as many as 19 percent of college women report that they had experienced completed or attempted sexual assault.

But don’t tell President Obama or Congress that the military is safer than college, or that the military is prosecuting credible sexual-assault claims. To the civilian leadership, the military is in crisis, the brass need to fix the problem, and longstanding rules of military justice need to be upturned. “So I don’t just want more speeches or awareness programs or training,” the president declared in a news conference in May 2013, “but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable — prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.”

Coming from the commander-in-chief of the United States military, that statement constituted, as military judges in the Air Force and Navy held, “unlawful command influence” in violation of the Uniform Code of Military Justice. The UCMJ prohibits a commander from ordering a specific outcome or punishment in any given case, a prohibition violated by the president’s direction that dishonorable discharge be considered following some convictions.

These Air Force and Navy rulings, together with more than a dozen other defense motions that threatened other military sexual-assault prosecutions, required the secretary of defense, Chuck Hagel, to clarify the president’s words, stating in a memorandum that “there are no expected or required dispositions, outcomes or sentences in any military justice case, other than what result from the individual facts and merits of a case and the application to the case of the fundamentals of due process of law.”

But the president isn’t the only politician to wrongly put his thumb on the scales of justice. By a vote of 97–0, the Senate recently passed a bill, sponsored by Senator Claire McCaskill (D., Mo.), to reform prosecution of sexual-assault cases. While the bill is not as extreme as one proposed by Senator Kirsten Gillibrand (D., N.Y.), which would have removed sexual-assault prosecutions from the chain of command, it still alters normal military criminal procedure.

Under Gillibrand’s bill, if a commander and his JAG (Judge Advocate General’s Corps) officer disagreed about the merits of a sexual-assault case, the dispute would have gone all the way to the civilian service chief, a requirement that would have placed far greater weight on decisions to prosecute sexual assault. In addition the bill would have required that “in every decision on every promotion in the military,” a commander’s record in handling sexual-assault cases be considered, injecting into the commander’s decision-making a factor — whether his decision can be justified to a promotion board — that is irrelevant to the proper administration of justice.

Is justice more important in a sexual-assault case than in a murder case or other violent crime? By having the civilian service chief and promotion boards looking over commanders’ shoulders regarding the handling of sexual-assault complaints, the message is clear: Commanders can’t be trusted. Moreover, the goal is clear: Commanders should increase their rate of prosecutions.

But neither Senator Gillibrand’s defeated bill nor Senator McCaskill’s unanimously passed bill will do anything to clear up the ambiguity and messiness of the typical sexual-assault case. Just ask Brigadier General Jeffrey Sinclair.

General Sinclair, the former deputy commander of the 82nd Airborne Division and perhaps the military’s highest-profile sexual-assault defendant, was accused of a host of offenses, including adultery, viewing pornography in a deployed area, and committing sexual assault against a younger captain with whom he carried on a three-year affair.

The general did not dispute the adultery and other, lesser charges, but he disputed the assault charge, vigorously. In early March his court-martial was suddenly suspended when the military judge ruled that the military might have pressed ahead with its prosecution of Sinclair not because of the evidence in the case but because of the perceived political need to “send a message.” In fact, the victim’s lawyer in communications with prosecutors explicitly tied the case to the Army’s larger fight against sexual assault. And now a plea bargain is back on the table in a case that feminist Slate writer Amanda Marcotte noted would be “just as messy in civilian court.”

Yes, sexual assault is a heinous crime. Yes, sexual assault can fracture unit cohesion. So can many crimes, especially violent ones, but the president has singled out sexual-assault complaints as the reason to violate the due-process rights of defendants through unlawful command influence and has led Congress to inject, through the McCaskill bill, promotion considerations into prosecutions.

The mission of the United States military is to fight and win the nation’s wars. It is not a social-justice organization with an ancillary war-fighting mission, and the president and Congress should take great care in upending rules of military justice that have been proven over time to safeguard the constitutional rights of the accused, achieve justice for victims, and maintain the military’s command integrity and fighting edge.

– Mr. French is an attorney and a veteran of the Iraq War.

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