Our #2 story is really a continuation of our #1 story last year, and the media and congressional obsession with military sexual assault cases.  This year we saw continued attempts at tinkering with the military justice system to address issues, both perceived and real, with sexual assault in the military.  See here (debate on earlier Sen. McCaskill and Sen. Gillibrand bills), here (Sen. Gillibrand’s recent push to remove commander authority over certain offenses, including sexual assault), and here (changes in MilJus in the FY15 NDAA).

In related news, the Report of the Response Systems to Adult Sexual Assault Crimes Panel was released to Congress on June 27, 2014.  The report recommended modest changes to the MilJus and military training, but also contained a strong dissent recommending that “[c]ourt-martial convening authorities . . . should no longer control the decision to prosecute sexual assault cases in the military justice system.”

And recently, initial results of the RAND study of military sexual assault (here) had mixed results as they probably more accurately estimated potential sexual assaults in the military–but that of course meant that the data showed more official reports of sexual assault but a “27% decrease” (S&S reports here and here) in the estimated number of service members that were subject to unwanted sexual contact.  And while more official reports is one of the goals of this recent focus on sexual assault in the military, the seeming focus in the media and on the Hill is a numbers game that has very little to do with the real issue of preventing and prosecuting sexual assault, see our prior discourse on this subject here and here (to link a few).

But the actual cases also made headlines again this year.  Some of the sexual assault cases in the headlines came, yet again, from the Academies, including a high profile acquittal in Annapolis (here and here) and an investigation of student athletes in Colorado Springs (here).  And, again this year, commanders made headlines for handling–though mainly alleged mishandling (here and here (USAFA cases))–of sexual assault cases.  And judge advocate leadership on this issue even grabbed headlines, here, when a top sex crimes trial counsel was reprimanded after allegations that he “kissed and groped a female officer while attending a conference on sexual assault prevention.” But the biggest case was, obviously, the conclusion of the Brigadier General Jeffrey Sinclair case in March, here.  That case showed just how politicized the military justice system and the issue of sexual assault had become when the defense in the case successfully argued, and ultimately obtained a very favorable plea agreement and sentence as a result, that political influence had improperly swayed the convening authority to deny a plea agreement requested by the General, coverage here and here.

2 Responses to “Top Ten Military Justice Stories of 2014 – #2: High Profile Sexual Assault Cases”

  1. Just a thought says:

    Extract from transcript of RSP hearing, 30 Jan 2014
    The Honorable Elizabeth Holtzman
     
    “If we junk this idea of the commander, high-up commander as the convening authority, convening authority meaning having the decision about whether to prosecute and what charges to bring, who are we leaving it up to? You know, it’s like jumping from the frying pan into the fire. What are we jumping from, and what are we jumping to? And I’m very worried about the to, what we are picking out as an alternative. It sounds very wonderful. Let’s turn this over to trained prosecutors. I can tell you right now, I was District Attorney in Brooklyn, the fourth largest office in the United States. There is a major investigation about “trained” prosecutors going on right now in that county because the question is whether trained prosecutors follow the law, the Constitution, not the Code of Military Justice, but the U.S. Constitution with regard to the requirement to turn over exculpatory evidence to defendants. These are trained prosecutors.”
     
    “There are other issues with regard to trained prosecutors, and when I became District Attorney I cared a lot about the prosecution of sexual offenses. And I made those changes in priorities. In my office when I came there, I wouldn’t say that the prosecution of sexual offenses was a top priority, and I would say that if the case were close they might decide not to bring it.  I made a change in that because I said, as some commanders might say, or convening authority might say, it’s more important to send a message if the facts warrant it, and the law warrants it, to try to achieve a conviction than to say oh, I want to have a high conviction rate. Just turning it over to a prosecutor doesn’t mean you’re going to get the result that you’re looking for here because a prosecutor – these are – what this provision would do is be to take all felony cases, burglaries, theft, assault, and other kinds of similar – murder and take them to the prosecutorial authority, whatever it is. “
     
    “Well, who’s going to decide in this prosecutorial authority that sex crimes are a priority? Maybe they’ll think that burglary is a priority, or maybe they’ll think that auto theft at a felony level is a priority, or maybe they’ll think that regular assault is a priority. That’s what happened when I became DA, I had to change those priorities. Who’s going to be setting those priorities? We don’t know.”
     
    “Here we have a command structure where we know who’s held accountable. We know the person who’s made that charging decision.  When it’s turned over to a faceless, nameless organization who’s making that charging decision? Who do I complain to? Who do I hold accountable? These are very serious questions.  And while it sounds very good to turn it over to trained and experienced prosecutors, I’ve been there. I had an office of 400 trained and experience prosecutors, and I would not say that without a leader setting the priorities and setting the charging direction, that just turning it over would produce a result that any one of us would have supported. Each decision might be fine on its own but, you know, I’ve got this big caseload and I’m worried about my promotion so I’m not going to take this he said/she said, because if I lose that, that’s going to be a demerit for me.”
     
    “Don’t think that prosecutors won’t have some of the very same concerns that everyone is worried about with regard to commanders. They are also human beings, so before we jump from what I don’t consider yet to be a frying pan, I don’t want to jump into a fire. So, I need to know where we’re going to if we’re going to make this change, and we don’t have that clear. And I think, also, that if we had – we don’t have the evidence that we need to have to make the change at all.”
     
    “I just also want to point out the decision now because of the focused attention on this problem, the decision by the convening authority has been very narrow so that if the judge advocate, the legal advisor and the convening authority don’t agree on what should be done, then the whole matter automatically goes up. So, the decision – no commander is going to have a final decision to say no, unless that’s reviewed. Well, that’s pretty serious. That means that that decision to say no is going to be really carefully scrutinized. And that’s what I think was one of the problems here that I raised with the former members of the military, is the fear that if you leave this with any commanders that somehow they will try to push this under the rug by not deciding to prosecute, or by interfering with investigations.  Well, they can’t interfere with investigations, but they can’t push this under the rug either because a no decision is going to be reviewed on a higher level. How this works in practice is something we have to see.”
     
    “These are all new changes that have been made, but it seems to me that the changes that have been made will protect the concerns that the commander – the convening authority is making a serious judgment. I might not always agree, people might not always agree with my opinion, but that the decision is made with sincerity, on the basis of the evidence in an honest and honorable, straightforward way. And if it’s not, it’s going to be reviewed. And that’s going to be reviewed.”
     
    “So, I think that the changes that have been made should address the issue of trust, and I think those people who want to see the system changed ought to take a really, really, really hard look at what the alternative is. And that has not been spelled out. It’s very fuzzy, very vague, and very problematic and troublesome to me having been in that very hot seat of a prosecutor where we had to prosecute these cases. And without the leadership, and without the drive to make those changes, who knows what kind of bureaucratic response there will be, bureaucratic response to the issue of sexual assault by trained professional prosecutors.  That could happen, and that is a danger here, and that hasn’t really been addressed by those people who advocate that change. Thank you.”
     

  2. TS not Elliot says:

    Most important quote from above: “Here we have a command structure where we know who’s held accountable. We know the person who’s made that charging decision.…”
     
    That statement is wrong and shows a lack of understanding of how things work, particularly when senior officers are involved. As seen in the CMC case, accountability does not exist for those in such positions. 
    And this quote illustrates further that there is a fundamental lack of understanding:That means that that decision to say no is going to be really carefully scrutinized. And that’s what I think was one of the problems here that I raised with the former members of the military, is the fear that if you leave this with any commanders that somehow they will try to push this under the rug by not deciding to prosecute, or by interfering with investigations.  Well, they can’t interfere with investigations, but they can’t push this under the rug either because a no decision is going to be reviewed on a higher level…the convening authority is making a serious judgment. I might not always agree, people might not always agree with my opinion, but that the decision is made with sincerity, on the basis of the evidence in an honest and honorable, straightforward way. And if it’s not, it’s going to be reviewed. And that’s going to be reviewed.
    If the Honorable Elizabeth Holtzman thinks these commanders don’t, or won’t, interfere with investigations then she is primed for major disappointment. It appears she does not understand how commanders communicate at such levels, how decisions are ‘chopped’ as they move up the chain, and what she thinks is ‘review’ is nothing more than a ‘rubber stamp’. 
     
    This blind faith, this presumption of regularity has done enormous damage to the idea of justice.
     
    Presumptions of regularity, without accountability when things are not so regular, is equivalent to handing these responsible officials a ‘get out of jail for free’ card, while turning a blind eye to justice.