by Marc E. Rosenthal*
Sexual assault is a major problem in every branch of the American Armed Forces. The current military justice system is flawed in such a way as to deny victims of sexual assault in the military meaningful and competent justice. Victims of sexual assault in the military do not receive the same due process that their civilian counterparts receive. The bottom line is that our service-members deserve more than the current military justice system provides because service-members leave their loved ones and homes to fight–sometimes never to return– in order to protect our homeland and promote American justice and democracy abroad.
One of the military justice system’s many failures is the lack of procedural protections in pretrial probable cause determination (Article 32) hearings. Unlike the closed-door civilian grand jury proceedings, which do not allow defense counsel to attend, Article 32 hearings are public, and defendants are legally entitled to thoroughly cross-examine government witnesses. While rape shield protections are supposed to prevent many of the abuses that have occurred, the protections have not been competently enforced. Two laws applicable in Article 32 hearings completely contradict each other, resulting in an impediment of important procedural protections. However, if the military justice system is amended and the rape shield laws are properly followed, many injustices, i.e., the fall 2014 Maryland Naval Academy pretrial hearing, will be averted. In addition to the rape shield problem, the National Defense Authorization Act (“NDAA”) of 2014 did not create laws prohibiting the use of non-legally trained investigating officers in all situations. Additionally, even though NDAA 2014 amended the “availability” options for Article 32 witnesses by giving witnesses the legal right to not attend the hearing in certain circumstances, there is still a loophole that allows defense counsel to depose and thoroughly cross-examine key government witnesses. Most importantly, the deposition officer charged with overseeing the deposition is not required to rule on objections or to possess any legal training.
Some victims fed up with the failure of the military justice system are turning to federal district courts—desperate for relief and crying for help. While district courts are sympathetic to the allegations, the courts do not have the legal ability to provide redress for the victims. Finally, although NDAA 2014 was not as revolutionary as Senator Gillibrand’s proposed Military Justice Improvement Act, it still passed several key improvements. It is a positive half-step forward.
*Chief Articles Editor, 2014-2015, University of Miami National Security & Armed Conflict Law Review; Juris Doctor Candidate 2015, University of Miami School of Law; Bachelor of History 2012, University of Florida. Thank you to my advisor Professor Donna Coker for all her support and advice through this entire process. Thank you to all my friends and family for your constant support. Finally, thank you to all members of NSAC past, present, and future for your commitment, hard work, and friendship. A special thank you to Sarah Fowler, Chief Notes Editor, 2014-2015.