By Claire Rumler – Sexual assault has been a longstanding issue in the various branches of the United States military forces. In early March, Army Brigadier General Jeffrey Sinclair avoided brig time after pleading guilty to adultery and mistreatment of one of his accusers. Per the plea agreement, the sexual assault and sodomy charges against him were dropped. Although he pled guilty to various other charges during the course of the court martial proceedings, the Brig. Gen.’s plea deal sparked a public outcry about sexual assault is handled in the military. But some military lawyers, both civilian and active duty, are concerned about the effect that the public outcry has had on the congressional and executive oversight of military sexual assault proceedings.
For example, Sen. Kirsten, D-NY is advocating for a bill that would strip commanders of their authority to investigate and prosecute military justice cases, and pass it to judge advocates who are outside the chain of command. This approach to the problem of sexual assault prosecution is threefold. First, it fails to take into account the unique nature of the military, especially in combat zones like Iraq and Afghanistan. Although judge advocates are routinely stationed in combat zones, it is not always possible for them to investigate and prosecute these crimes. Judge advocates in combat zones have a significant amount of other legal responsibilities and may not have the resources to investigate every sexual assault claim from every unit. Second, there are occasions where officers within the accused’s chain of command are more gung-ho about investigating and prosecuting sexual assault claims. Finally, removing investigatory power from the chain of command undermines the crucial military principle of command authority- especially in combat zones.
Another cause for lament among military lawyers is the recent presidential pronouncement that every military member who is convicted of sexual assault should be “prosecuted, stripped of their positions, court-martialed, fired, [and] dishonorably discharged.” Most civilians don’t understand the true gravity of these words in a military context. Since President Obama made these statements, military defense lawyers have enjoyed success in getting a number of sexual assault cases dismissed. They argue that these words, uttered by the Commander-In-Chief, constitute “unlawful command influence” and deprive defendants in these cases of their right to due process. Furthermore, the President’s comments may indicate to military judges that a particular outcome is required in sexual assault cases. In fact, Brig. Gen. Sinclair’s defense team raised this exact argument at his trial, although with less success than defendants in other cases.
Ultimately, the civilian outrage over, and subsequent interference with the military’s handling of sexual assault cases may cause more problems than it solves. Civilian politicians often do not understand how the unique aspects of military life have affected the evolution of the military justice system. They also do not understand how some of their proposed solutions may have an impact beyond the courtroom. Sexual assault is a real problem in the military. However, the solutions cannot come from an outsider looking in. The most effective changes will only be made if they account for the unique challenges of military life, especially in combat zones.