In a lengthy story published in the Washington Post yesterday and available here, reporter Craig Whitlock writes about the way the Air Force handled sexual misconduct allegations made by a female civilian employee against her military supervisor, Colonel Ronald Jobo.
The story outlines cringe-worthy sexual harassment of the civilian employee by the Colonel, eventually leading to his receipt of nonjudicial punishment and transfer to the retired list at a reduced rank. It’s hard to gauge the appropriateness of this disposition without a comprehensive review of the facts and circumstances. But the story doesn’t offer that to the reader. Rather, it advances the tired narrative that the military is somehow incapable of addressing sexual misconduct within the ranks:
In their report, the investigators compiled extensive evidence that the colonel, Ronald S. Jobo, had committed abusive sexual contact against the woman, a civilian in her 30s. Under military law, the charge would have automatically resulted in a court-martial, a proceeding open to the public. The crime carried a sentence of up to seven years in prison and a requirement to register as a sex offender.
The decision on what to do next rested with a three-star general 600 miles away at Wright-Patterson Air Force Base in Ohio. In the military-justice system, commanders — not uniformed prosecutors — have the power to dictate how and whether criminal cases should be pursued.
In March 2016, Lt. Gen. John F. Thompson, the senior officer in Jobo’s chain of command, decided against charging Jobo with abusive sexual contact, or any crime at all. Instead, Thompson imposed what the military calls nonjudicial punishment, or discipline for minor offenses.
Jobo was forced to retire and demoted one rank, to lieutenant colonel. Because the military keeps most disciplinary actions secret, the case was hidden from public view.
There would be no trial, no publicity and no public record — the same for thousands of other sexual assault investigations each year in the armed forces.
An examination of the Jobo investigation, based in part on an internal 400-page law enforcement case file obtained by The Washington Post, casts doubt on the military’s promises to crack down on sexual misconduct and hold commanders accountable for how they administer justice.
This reporting suffers from a few serious flaws.
First, the claim that “under military law, the charge [of abusive sexual contact] would have automatically resulted in a court-martial,” is totally fake. There is no charge that results in automatic court-martial.
There are DoD-wide and service-specific limitations on the authority to dispose of sexual assault allegations that generally require the attention of senior commanders, but those don’t seem to be implicated by the facts of the Jobo case (and, since the accused was an O-6, the case got high-level attention anyway). Nevertheless, nothing in those regulations, or in the UCMJ, requires a court-martial. And for good reason, as the decision to subject an accused to a court-martial must be based on the weight of the evidence, not merely the seriousness of the allegations.
Next, the observation that Jobo could have been charged with abusive sexual contact, which is a violation of Article 120(d), 10 U.S.C. § 920(d), is hardly a measure of the seriousness of the allegation. For sure, abusive sexual contact can be a serious offense involving inappropriate sexual touching. But the charge also applies to any touching – even with an object – of a number of body parts for any of multiple reasons, some not necessarily sexual. The offense of abusive sexual contact is, in fact, so broad that it applies to a situation where a bully throws a dodgeball at a person with the intent to abuse, humiliate, or degrade that person, and the dodgeball hits the person in the buttocks (as was argued to CAAF in United States v. Schloff, 74 M.J. 312 (C.A.A.F. 2015) (CAAFlog case page)).
Jobo’s behavior with the civilian employee certainly seems reprehensible (and there’s every reason to demand that an O-6 avoid even the appearance of such impropriety), but the mere fact that it could form the basis for a sexual offense prosecution under the UCMJ is another reminder of how incredibly broad the Code’s definition of sexual assault really is. See, for example, A sexual assault Rorschach.
Third, the story carries water for the tired argument that military lawyers should take the authority of commanders in the military justice system:
U.S. military commanders have wielded near-total authority to impose discipline or criminal charges since the Revolutionary War, but their role has come under sharp criticism in recent years.
Most commanders have little, if any, legal training. Congress has debated whether some of their powers should be ceded to military prosecutors, especially in sexual assault cases.
The Pentagon has vigorously resisted, arguing that commanders need to retain their authority to maintain order and discipline in their units and that they receive plenty of advice from military lawyers.
Military lawyers already play an outsized role in the military disciplinary system, which exists to address the unique needs of the armed forces (and not serve as a separate-but-equal venue for general criminal prosecutions of the men and women who serve our country in uniform). Yet while it’s hard to say whether this case was handled properly without knowing all the facts and circumstances, one thing is clear: There are state and federal civil justice systems available to prosecute any crimes in this case. Why didn’t they?
Fourth, the story twice mentions that military disciplinary proceedings are often secret. This is another invocation of the perception of opacity in military justice that totally ignores the privacy rules enacted by Congress and promulgated by the President. Neither the Air Force nor the DoD are responsible for the Privacy Act, or the personal privacy exemptions to the Freedom of Information Act. Both agencies, however, must apply them to reporters’ requests for information about military discipline.
Finally, the report concludes with a discussion of Jobo’s transfer to the retired list:
Air Force officials said that Jobo was subsequently forced to retire and that a review board determined that he should be demoted to lieutenant colonel.
Jobo, now 49, retired effective October 2016. He will receive a military pension for the rest of his life.
It is now worth about $72,000 a year, or $10,000 less than if he had not been demoted, according to an Air Force spokeswoman and pension records.
This is, of course, a product of the military’s all-or-nothing retirement system created by Congress. But more importantly, it means that in exchange for his retired pay Jobo will be subject to the UCMJ for the rest of his life. The Washington Post’s reporting doesn’t mention this.