I read this piece from WaPo’s Petula Dvorak and it convinced me that I wanted to say something about media coverage of LTC Krusinski arrest and the recent uproar over sexual assault courts-martial.  Ms. Dvorak writes about how the military could learn something from the prosecutor in Arlington County that refused the military’s request  to prosecute the Krusinski case.  She ends by saying:

Hey Pentagon commanders, look over that 395 freeway onramp, just past the McDonald’s and Macy’s, and see how allegations of sexual assault ought to be dealt with. Like a potential crime.

To clarify, the Arlington prosecutor has so far charged Krusinski with a “misdemeanor charge of sexual battery.”   See JMTGst’s post below.

Now, leaving aside from the reality of the DoD  survey data on sexual assault that OFL has commented on here, here is my rant.

I know from personal experience that the military takes and prosecutes sexual assault cases that civilian DAs refuse to prosecute.  They take so called “he said/she said” cases that rely on the word of the alleged victim who may have been intoxicated at the time of the alleged events.  Now that does not mean that a sexual assault didn’t occur, in fact, many sexual assault cases have been prosecuted by the military and won in these circumstances–where the victim’s judgment and communication ability is impaired.  But what it does mean is that the cases are very hard to win in front of any “jury” or members’ panel.  But the military takes them.  CAs win some of these cases and lose some in front of a panel of members–cases civilians would have refused to even charge.

But the Krusinski case is not a “he said/she said” type of case.  This is a forcible assault by a stranger.  Any every DA, CA, or prosecutor would take this case.  So don’t compare the two.  All that said, Krusinski is charged with a misdemeanor.  I don’t know Virignia law, but I am assuming that means his charges carry a maximum sentence of one year or less (see JMTGst below confirming that).  If he was charged in the military he would be facing 20 years based on the new, new Art. 120, UCMJ [or 7 years based on Prof. Clark’s analysis in comments].  LTC Krusinski probably wouldn’t be sentenced to 20 years in prison by a court-martial, he’d likely receive substantially less. But the same can be said for Arlington County.  Who knows where he would get a harsher sentence, but I think its far from clear that Arlington will treat him more harshly.

In summary, we can all agree that the military has issues in dealing with sexual assaults and, in particular, promoting a culture that fosters reporting.  The military should be handling this issue better than the civilian populace and right now it is hard to say that the military is.  But, the Krusinski case is not a poster child for those issues.

And, more importantly, changing the inner workings of the MilJus system, from removing CA findings’ clemency power to taking all prosecution decisions away from CAs, will not address most of the issues that the military faces relating to sexual assault. The issue is changing attitudes and mindsets, for example, changing the mindset of those in the military that commit these offenses so that they don’t happen and changing the mindset of the actors in the military that deal with victims/alleged victims (including CAs) so that there is no fear of reporting.

Can Congress and the President tweak the MilJus system to address CA clemency power or totally revamp the system to install a UK-like system run by lawyers, sure.  Will that fix the larger issues . . . who knows?  But I can tell you this, installing a UK-like system to address the current issues in the military with sexual assault reminds me of when my 6-year old bumps his knee (and doesn’t draw blood) and asks for a Band-Aid.  It might make him feel better to put on a Band-Aid, but it doesn’t address the bump on his knee.

23 Responses to “Warning Rant on Media Coverage of Military Sexual Assault Issues”

  1. Lieber says:

    I don’t see why taking the decision making power away from convening authorities (which doesn’t make sense in a 21st century military anyway, it’s like a town mayor telling the local DA what to prosecute) wouldn’t help with reporting.  In fact the publicity surrounding the move almost certainly would help with reporting.

  2. Michael A says:

    This article is loaded with hypocrisy.  The author lauds the Commonwealth’s attorney for refusing the military’s request for jurisdiction becuase “the case was on her turf.” 
    So in other words, Arlington did the right thing by prosecuting someone who breaks their laws; the author looks favorably upon the county for fighting crime within its borders.

    But does not the military have the same interest in prosecuting someone who violates our laws, i.e. the UCMJ?  Yet the author kills the military for even requesting jurisdiction.  I don’t understand the distinction.

  3. Mike "No Man" Navarre says:

    Lieber–I thought my analogy suggested that I agreed a change to the Mil Jus system would make people feel better in the short-term? So we are in agreement on that.

  4. Dyskolos says:

    Sadly, most in the media are not qualified to have a valid opinion in military justice.  They just flail about. More regrettably, our elected representatives are no better and have means to make dysfunctional changes to suit their current mood. Would that they could find some wisdom by listening to seasoned experts in the area. 

  5. ResIpsaLoquitur says:

    Sigh.  To a (small) extent, I feel bad for the author.  I get the sense that she’s got an ax to grind with the military, and this is her opportunity to do so.  Some people–mostly journalists, I guess–thrive on seeing other people or institutions fall.  For better or worse, the military has been lauded for over the last 11 years thanks to its continual ops tempo and members who frequently spend a year or more away from their families.  There’s been individual scandals (Haditha comes to mind, even if much of it has been debunked), but the military has largely been held in high esteem as an institution. 
    Maybe there was collective American guilt after mistreating the troops during Vietnam, and nobody wants to go there again.  Well, maybe some people–like Dvorak, maybe–want to go there again and were waiting for the right opportunity.  I hope I’m wrong about this, but I sense an increasing desire on the part of some civilians to publicly castigate the military, and allegations that it institutionally condones sexual assault–true or not–could hurt it DoD for years.  I hope not, but DoD could end up as the new version of the Catholic Church with the sexual assault spectre clouding over everything it does for decades to come.
    My advice to posters on here would be to get on the comment threads like the one at the bottom of the WaPo article and try to dispel some of the myths out there.  You probably won’t change the Dvoraks of the world, but maybe you can wake up a few people who read your comments.

  6. Ama Goste says:

    I consider the source on this one.  Her columns are usually a bit off-kilter.

  7. Jim Clark says:

    The activity the newspapers ascribe to LTC Krusinski really does not fit any available felony charge under Virginia law. Sexual battery covers “sexual abuse” crimes . VA-Stat § 18.2-67.4, and is a misdemeanor if the victim is a competent adult. Were that same activity charged under the UCMJ, I would expect Abusive Sexual Contact (Art. 120(d) would be the most appropriate charge (sexual contact by causing bodily harm). What’s the max sentence? POTUS has not signed an Executive Order assigning sentences to the 2012 Art. 120 yet, so we don’t KNOW. Probably 7 years, if we apply the parallel sentences from the 2007 Art. 120. This is the most likely correct interpretation of RCM 1003(1)(B), and the one recommended in the Judges Benchbook and by me when teaching Art. 120 at the JAG school. It is also what the draft E.O. says. The 20 year charge would be Aggravated Sexual Contact, but the force definitions for that section (Art. 120(g)(5)) might be hard to prove, again using only the facts alleged by newspaper reports.

  8. Mike "No Man" Navarre says:

    Jim–Thanks for that analysis. I don’t think that changes the point I was making that he would be charged with a more serious offense under the UCMJ.

  9. anon says:

    Someone please correct if I am wrong but I don’t believe under Virginia law a single misdemeanor conviction for sexual battery (not aggravated) requires sex offender registration. 

  10. ResIpsaLoquitur says:

    Similar, but less snarky, piece over at The Atlantic: http://www.theatlantic.com/politics/archive/2013/05/ending-the-culture-of-impunity-on-military-rape/275661/.
    One thing (among many) that’s bugging me is the assumption that out of 26,000 sexual assaults, the purported victims are all women.  Check out the comment thread that follows the article: 26,000 women have been sexually assaulted.  I hate that.  When I get the chance, I’d like to find the male/female breakdown in both assailants and victims.  I don’t doubt that the breakdown heavily weighs towards male assailants and female victims, but I’d put money on the percentage of victims not being 100% female.  Ugh.

  11. Christopher Mathews says:

    Following up on anon’s question about Virginia law: do any of our lawyers with experience in that area know whether the accused is entitled to a jury trial of a misdemeanor offense?

  12. Jason Grover says:

    Judge Mathews the Greatest,

    If convicted of a misdemeanor in General District Court (a court not of record), a defendant can appeal to the Circuit Court (a court of record). Once in Circuit Court, the defendant or the Commonwealth can request a jury. As a disclaimer, I am not a Virginia attorney, but that is my understanding.


  13. Mike "No Man" Navarre says:

    RIL–I de-snarkified this post late last night, I am not sure what you mean.  And from my quick reading there is not much at all similar between this post and the The Atlantic piece.

  14. Ian says:

    You go, Mike!

  15. Ama Goste says:

    RIL, from experience defending and prosecuting such cases, I’d say there’s a fair number of male-on-male assaults included in that number, even after DADT was lifted.  I haven’t ever personally heard of a female-on-female sexual assault in the military (with the possible exception of TI-trainee “unable to refuse consent”-type situations), but I imagine there are a few of those sprinkled in also.

  16. ResIpsaLoquitur says:

    @No Man,
    I’m a little confused, but what I meant was that the WaPo article by Dvorak was snarky, not your post.  (“Snarky” is probably being chartiable.)  If you thought I meant that you were being snarky, I apologize.

  17. Jason Grover says:

    No Man often intends to be snarky, thus his confusion.

  18. Mike "No Man" Navarre says:

    What SuperG said, sorry for the confusion RIL.

  19. Lieber says:

    Over 50% of the extrapolated 26,000 figure are male victims (obviously a lot of hazing type incidents are being included…that, or a lot of self-selection among the respondents).
    14% of reported sexual assaults in the Army in FY 12 had male victims.

  20. ResIpsaLoquitur says:

    No problem.  Here’s another one from Slate.  (Usually, whatever story The Atlantic picks up, Slate picks up on the same day.)  This one’s actually written by a current and former member of the 101st Airborne.  Oddly, it has a little bit more sanity than I’d expect from a Slate article–they usually write the “off the rails” version of whatever The Atlantic has.  http://www.slate.com/articles/double_x/doublex/2013/05/sexual_assault_in_the_military_why_it_s_rising.html

  21. AF_DC says:

    It’s time for a military lawyer to write an article for a major media outlet about this issue. I’d love to see a comparison of civilian non-prosecution rates versus military non-pros rates. I will bet my firstborn that the civilians’ are higher.  I’d like to see someone point out that there’s a difference between calling for more prosecutions of bona fide SA cases and calling for more convictions, as even our Commander In Chief has recently done. I’d like someone to point out that not every SA case is rape — many are unwanted touching or indecent conduct. Some of the reported “sexual assaults” are actually sexual harassment — a genuine problem, but not the same thing.
    Someone should point out that sometimes the people accused of crimes are innocent, like the senior NCO I defended whose ex-wife eventually admitted that she’d made up the allegations against him because she wanted the upper hand in their custody dispute.
    I’d like someone to point out the prejudice that all this hysteria is causing to the legal rights of SA suspects, who have not yet been convicted and may in fact be innocent. I currently have several clients who are awaiting trial on sexual assault charges, and I actually, no-kidding fear that they won’t get fair trials because of all UCI and media attention. Certainly no CA will grant clemency in an SA case for years to come after what happened to Lt Gen Helms.
    Anyone writing about this would probably have to be a former JAG, not currently on active duty.

  22. AFADTC says:

    Somebody should just make a solid JAG movie.

  23. Contract Lawyer says:

    Jason – YES, in Virginia, convictions in General District Court may be appealed to Circuit Court for a trial de novo and there is a right to a jury trial. This trial de novo is the mechanism to provide the right to trial by jury to include the right to a jury for civil matters over $50. You may even do this for traffic or parking tickets, although any conviction carries with it the court costs for the jury, which is a few hundred dollars. For a serious misdemeanor, this process provides a meaningful protection at the election of the accused.  One drawback would be if an accused is convicted and fined, he could appeal his conviction to Circuit Court where he is re-convicted and sentenced to a greater sentence to include a jail term where there was originally no jail sentence.  On appeal, the defendant does not have to request a jury trial.  After the findings and sentencing in General District Court, the defendant has ten days to note his appeal to the Circuit Court.  Noting an appeal has the impact of reversing the conviction, though subject to the defendant withdrawing the appeal causing the District Court verdict and sentence to be reinstated. 
    In the current case, the accused is subject to a maximum sentence of a year in jail.  If convicted in General District Court, the accused may appeal the verdict to the Circuit Court where he receives a trial de novo and is subject to the same maximum punishment, though the Circuit Court is not bound by the punishment of the lower court if there is a conviction. 
    Prosecutors may avoid a General District Court trial and second bite of the apple by seeking indictment of the accused and that would directly certify the case to the Circuit Court.  This is rare for misdemeanors, though used in circumstances of a legislator with immunity from arrest (but not indictment) or other defects in the arrest that can be cured by direct indictment.  A judge in General District Court also hears preliminary hearings for felonies and may convict an accused of a lesser included misdemeanor, which would bar indictment and trial in Circuit Court, of course subject to the defendant’s right to appeal the misdemeanor conviction to Circuit Court with only the misdemeanor being on the table.  When a District Court judge dismisses a case at a preliminary hearing, the prosecutor may still obtain an indictment and bring the case in Circuit Court.