Military times has this piece on recommendations to allow convening authorities to retain their authority in sexual assault cases.

17 Responses to “Panel news”

  1. CW5 Candice Graves, USA Retired says:

     
    The panel headed by Barbara Jones, who has now rendered a decision of “..evidence does not support a conclusion that removing such authority (Commanders)” prohibits the changes from the UCMJ to be practiced and implemented.
     
    There are a number of questions for the general population of the military that needs to be addressed and explained:
     
    1.  At what level of “Commanders” would the authority to convene and act on a court-martial process for sexual assault or rape? Does a Company Commander, Battalion Commander etc. have this power or be given this power? – realizing that there is NO experience as an attorney for “any” commander at any level nor any requirement to having a formal 4 year degree as an attorney.
     
    2.  If rape is considered a “felony” then why would “Commanders” be involved with a court-martial process and not the JAG (Judge Advocate General-attorneys).
     
    3.  Where in any of the officer training courses at any level and for any rank, do Commander’s acquire a JD (law degree)?
     
    4.  Where does a victim of sexual assault or rape appeal a case?  Or, do they have any rights to appeal?
     
    As for the committee’s remarks as “…no evidence that stripping commanders of their authority would reduce sexual assaults or increase reporting of assaults” is not the matter at hand.  The 2014 Defense Authorization Act may have created this committee for review; however, the UCMJ has already implemented the changes and placed the authority of court-martial process involving rape and sexual assault with the JAG which makes sense.  Further, what branch of the service other than the JAG has the experience and expertise to handle these cases?  
     
    The issue is not whether there is lack of confidence among the victims or reduces reprisal for reporting sexual assault or rape – the issue is to have professionally trained personnel responsible for the preparation and defense to represent sexual assault or rape victims!
     
    With this all said, I ask this committee to ponder this thought – Should victims of sexual assault or rape be represented by a plumber who is well qualified in his field or should a victim be representative by trained, knowledgeable attorneys?  “Due representation of the law” is the matter to this problem. The outcome should be to allow Commanders to do their trained profession and Attorneys to do their profession.
     

  2. phil cave says:

    Interesting, but hasn’t Congress decided to ignore the panels they partly set up.  Isn’t / hasn’t Congress been acting even before the panels have completed their work.
     

  3. Former AFTDC says:

    I am not on the committee, but I can provide some answers for the general populace:
    1. Courts-martial are handled by the General Court-Martial Convening Authority or the Special Court-Martial Convening Authority. GCMCAs are typically 2 to 3-star Generals. None of these individuals have a four-year degree as an attorney (Juris Doctorates are 3 year degree programs after undergraduate), however none of these individuals act without consultation with their attorneys (usually O-5s or O-6s).
    2. JAGs are involved with the court-martial process at every level.
    3. Command authority does not require a Juris Doctorate, but see answers to 1 and 2 above. Many JAGs I know are extremely competent and great officers, but ask them to command an infantry unit and they would struggle.
    4. Complainants in sexual assault cases do not have a right to appeal, since they are not the parties to the court-martial. This is true for the civilian criminal justice system as well.
    5. Complainants (who are otherwise eligible for legal assistance – active duty, reservists, dependents, retirees) have the right to be represented by an attorney, called a Special Victim’s Counsel. I don’t know what you mean by “due representation of law,” but this program appears to be successful.

  4. Candice Graves says:

    Thank you for your response.  As you may have guessed, I am not a lawyer (military or otherwise) but I have a great deal of passion for this subject.
    Again – thanks!
     

  5. RKincaid3 says:

    With the following quote, the article correctly but unfortunately reports that the panel was looking at the wrong problem:

    …members of the Response Systems to Adult Sexual Assault Crimes Panel concluded there is no evidence that stripping commanders of their authority would reduce sexual assaults or increase reporting of assaults in the ranks.

    The issue to be addressed is NOT whether the suggested change would result a particular favorable result—the reduction of sex assaults.  Instead, it ignores the pink elephant in the room.  Such subjective, outcome-based tinkering in order to achieve certain results IS the problem!!
    Whether the tinkering is done by a commander for a reason within their authority, or by Congress for a reason within their authority, so long as the Response Systems to Adult Sexual Assault Crimes Panel is not charged with the correct task from the beginning—such as figuring out whether the UCMJ is a “disciplinary” system or a “justice” system—it will continue to spew out invalid and incorrect conclusions. Garbage in-garbage out, folks!
    The problem with the current system, as I have stated over and over again (much to the chagrin of most of you who read this blog) is that any system designed with one purpose in mind, to-wit: military readiness (which is defined as effectiveness, efficiency and combat ability)—must and will NECESSARILY short change the RIGHTS of both a victim and/or an accused in deference to the ultimate goal–maintaining and enhancing a commander’s ability, authority and obligation to train and lead troops to victory on the battlefield.
    And in fairness, such a result is appropriate when the goal is something other than justice, such as a commander’s obligation to be ready to fight and win battles.  Such a narrow goal necessarily renders all other considerations of minimal or reduced value.   But if one wishes to protect either a victim or an accused from being disregarded, ignored, punished, or tossed aside for the sake of military readiness, then the commander MUST necessarily be removed from the prosecution decision chain and be limited only to making a non-binding recommendation to the prosecutor.  The independent prosecutor will give Congress the result they want, provided that Congress is willing to accept that not every sex assault will necessarily result in a conviction.
    Until Congress recognizes that its failure to set up a “justice” system in the military is not just a part of the problem but is really THE problem, the rights of victims being ignored by the system (the current problem) or the rights of an accused being ignored by the system (the problem when this issue was discussed at length in the “Crowder/Ansell” debates in the early 1900s), Congress will continue to deal with commander’s who fail to effectuate “justice” for either the system, the victim or an accused.  And when justice fails—the failure of discipline is not far behind.
    There is a time for “discipline” and time for “justice.”  Discipline helps a commander be combat ready.  Justice helps a system build confidence in the outcomes—whatever they may be—of the trials of those accused of crimes.  Because Congress keeps allowing commander’s to mix matters of “crime” and “discipline,” Congress—and the American people—to their dissatisfaction, will continue to be frustrated with how military justice operates.

  6. CW5 Candy Graves Retired USA says:

    RKincaid3:  I think you are right on target with what you have written and you have earned, at least on my part, space in my research file on this subject.  Thank you for your comments and views. 
    There is an article entitled “New Law Brings Changes to Uniform Code of Military Justice” by David Vergun – Army News Service dated January 8, 2014.  Mr. Vergun reporting identifies sweeping changes to the UCMJ and states that the changes have already been adopted and specifically Articles 32, 60, 120 and 125. I still have some concerns with the Army officials asking Congress to consider –  “where practicable, you will have a judge advocate conduct the Article 32 investigation”. 
    However, now with the subcommittee (congressionally mandated Pentagon panel) headed by Barbara Jones (former judge for the U.S. District Court for the Southern District of New York) recommending that Commanders should retain authority in sex assault cases, my concerns will be of no value assuming that the subcommittee’s recommendations are adopted by Congress and/or the Pentagon.
     
     
     
     
     

  7. RKincaid3 says:

    Chief:  thanks for the comment.  Since you mentioned your interest in this issue is related to a research file, (for a paper, maybe?), might I recommend that you scour past editions of CAAFLOG for their articles from last November/December?  If you scroll to the bottom of the CAAFLOG page, there will be a link that says “Older Entries.”  Click back through that link on subsequent pages until you find two series of articles: one called “Top Ten Military Justice Stories of 201;” and the other is called “2013 Changes To The UCMJ.”   Not only are the articles by CAAFLOG staff interesting, well reasoned and well written, but in most of them you will see comments to the articles from a variety of MJ practitioners with empassioned and reasoned arguments on both sides of this issue.  Some of the commenters reference other articles in other sources, such as Army JAG publications like Army Lawyer or Law Review that thoroughly cover the history of this debate over Justice and Discipline.  
    I recommend you check out those historical CAAFLOG entries, and read those articles and comments.  And then follow that read with a review of the “Crowder/Ansell” debates back in 1916 or so.  There are other articles to review as well, criticizing Ansell’s arguments and motivation, which provides an interesting backstory.  Through that research, you will find plenty of rich, thoughtful and interesting material on both sides of this issue for your research file. 
    Good luck with your research. 

  8. CW5 Candice Graves says:

    Thank you for directing me to other documents.  I would also appreciate any further input from you on this subject that you deem important (from either side of this issue).  Look forward to communicating with you.

  9. RKincaid3 says:

    Chief:  reach out to me via gov’t e-mai, I am on the global.  I will respond with info that I have from many sources that makes for good background and current, relevant perspective.  If you no longer have access to the global directory, let me know and we will come up with another way to exchange info. 

  10. RKincaid3 says:

    As for my part, I will try to reach out to you on either AKO or global. 

  11. CW5 Candice Graves, Retired USA says:

    Have a problem with AKO that I must fix Monday.  As for global, I do not believe I am connected anymore.  However, I have no problems with giving you my email (gravesdrcl@aol.com)
     

  12. RKincaid3 says:

    Hooah, Chief.  Will send you want I can on Monday. 

  13. CW5 Candice Graves, Retired USA says:

    RKincaid3:  Having some problems with locating the “Crowder/Ansell” debates back in 1916.  I must assume that I am just not familiar with this site.  Help!

  14. RKincaid3 says:

    Chief:
      Sorry…I was teaching all day yesterday.  I will have a chance to help today.  I will send you links and otehr docs to your e-mail.  Thanks for your patience!
     

  15. RKincaid3 says:

    Chief:  Just sent you an e-mail with attachments and hyperlinks.  Please let me know when you receive it.  Good luck with your research.

  16. RKincaid3 says:

    Thanks, Mr. Cave…I didn’t have some of those links…so thanks for posting them!