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.