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.

20 Responses to “The Washington Post’s troubling look at a sexual misconduct case”

  1. Vulture says:

    Just a further point on the wording and how it fits with public perception.  The article says ” The crime carried a sentence of up to seven years in prison and a requirement to register as a sex offender.”  Many posters here have called the SOR registration a punishment.  The way that the article is written, by placing SOR in sequence with an incarceration and statement of sentencing, it fits.  So how public viewpoints are formed is open to a lot of problematic information presented incorrectly.
     
    A reporter, who’s name evades me, said after the Broadwell/Petreaus story broke that he found his reporting lacking.  He quoted Petreaus as saying “Progress is fragile and reversible” in Iraq. He lamented that because he bases his assertion that there is progress.  That is not to throw undue shade at Petreaus or Broadwell or further muddy the waters on sexual behavior in the military. 
    It is rather to assert that reporters have to present a story, do so with a mind to their audience, and objectively.  Sometimes they do succeed, sometimes not.  It may not be their intent to otherwise skew opinion, but Military Justice is a subject that needs to be heard of.  CD said a few weeks ago that a service member might be up to ten times more likely to face a sexual assault allegation than die in combat.  So that is a story that needs to be heard, whether those numbers are wrong or not.  More high ranking officers are getting tagged with misconduct (OTJAG of the Navy being possibly one of them for possible UCI) so that sure as hell needs to be heard of.  But in one sense we are talking about details “trickling out” of that story.
     
    The MJ in Hasan denied a public information expert.  I couldn’t find a single news story about Stellato.  I’ve lamented the misinformation of Congress precisely because of the service caginess.  But there aren’t many reporters out saying progress is being made in the Military Justice system.  Not progress that is slow, reversible, or anything else.  At best they are saying it is antiquated, remiss, and arcane. 
     
    Zach, you make the point that due to his retirement the LTC is subject to recall for the rest of his life.  Good enough: recall each and every retired military lawyer out there and put them in front of a reporter.  Strip away all the un-separate and unequal provisions of Congress for secrecy.  Hold them subject to the Code for making false official statements.  Then let the reporter ask anything they want.
     

  2. (Former) ArmyTC says:

    vulture, did you just argue that a false statement to a reporter is a violation of Article 107? That’s cute. 

  3. Vulture says:

    No sir.  I did not.  If a lawyer for the OTJAG has the position of PAO and he lies in the course of his duties, what is that?

  4. Vulture says:

    No answer yet?  OK Former, we’ll recall you first.

  5. Zachary D Spilman says:

    There’s no reason whatsoever to subject retired judge advocates to compelled interrogation by reporters, Vulture

    As for the misinformation of Congress, as you put it, there’s only Congress to blame for that too. Every military commander of significance holds a Senate-confirmed commission – if not also a Senate-confirmed billet – and Congress is specifically empowered by the Constitution to oversee the military. Accordingly, Congress can get answers, and demand accountability, any time it wants to. And I suspect that it has, even if nobody bothered to explain the result to you.

     

  6. Ed says:

    Zach
    You are being far too tough on the reporter/We all know it is reasonable to have a person who on  a Saturday night gave a playful but non consensual slap to someone’s butt to face seven years in the DB and be labeled as a sex offender especially when they for 15 years have put their life at risk for their country and have suffered the product of numerous deployments and family separation. Get with the program Zach.

  7. Vulture says:

    Zach.
    There is a saying: If I want to speak to women I speak in French.  To a scholar, in Latin.  To a dog, in German.
    If I want to hear the party line, I take it from Congressional testimony.  To hear formalities, the Courts.  But if I want to hear qui bono, I will take that from the First Amendment.  Read that – the Press.
    Does Congress have it itself to blame?  I am not going to disagree with you there.  Not today.

  8. Lone Bear says:

    This article was disappointing. Whitlock’s writing on the Thompson case was mostly accurate and balanced, this read like a POD press release.  In most jurisdictions, this officer would have faced no punishment at all.  In the military he took what is probably a million dollar hit to his retirement.  It was sad to see such a thoughtless, inaccurate, and one-sided piece of journalism. 

  9. Brett P. says:

    I just read the WP article.  Not only did this behavior not deserve a court-martial, it’s a crying shame this poor schmuck took such a hit to his retirement.  A little over-aggressive on the flirtation?  Sure.  Just don’t see the outrage.

  10. k fischer says:

    If I were Lt Col Jobo, then I would probably release all the texts showing that she engaged in a personal relationship because he could be the Field Grade version of Airman Brandon Wright.  Thankfully, Sharon Dunbar has retired, so the AF will have to find another Government slap dummy to get Jobo’s case referred.  But, at least he could win in the Court of public opinion.
     
    Nonetheless, this article makes it sound like, even if there was an initial consensual personal relationship, he didn’t like it ending so much and reacted inappropriately.
     
    Also, I would call for an investigation of Lt Gen Thompson’s SJA to see if Thompson was advised to initiate Article 15 proceedings against Jobo.  If so, then perhaps charges should be preferred against the SJA for violating Article 98, noncompliance with the procedural rule to automatically convene a Court-martial when there is a founded allegation of sexual abuse by AFOSI.

  11. Zachary D Spilman says:

    perhaps charges should be preferred against the SJA for violating Article 98, noncompliance with the procedural rule to automatically convene a Court-martial when there is a founded allegation of sexual abuse by AFOSI

    Which rule is that, k fischer?

  12. k fischer says:

    Zack, 
     
    Why don’t you ask Craig Whitlock who wrote: 

     
    Under military law, the charge would have automatically resulted in a court-martial, a proceeding open to the public.

     
     
    btw, I’m a dude you’ve never experienced before…so don’t underestimate me, or my abilities to see right through you…

  13. DirtyHarry says:

    K Fischer,
    I’m sure it’s just your internet persona, but you come across as a real jackass bully.  Try dialing it down a notch and acting like you’re talking to someone face to face.

  14. Zachary D Spilman says:

    I really can never tell when you’re being sarcastic, k fischer!

  15. k fischer says:

    Dirty Harry, 
     
    I was feeling kind of lucky, so I sarcastically quoted one of Lt Col Jobo’s texts verbatim.  (If I said it to Zack face to face while he was drinking coffee, I would have been wearing it.)   Read it out loud.  It’s so ridiculous that Danny McBride’s character in ‘The Fist Foot Way‘ would say, “Take it down a notch, Lt Col JoBro.”
     
    Zachary D Spilman, evidently I overestimated your abilities to see right through me…..

  16. DirtyHarry says:

    K Fischer, good answer…..good answer.  I like the way you think.  I’m gonna be watching you.

  17. k fischer says:

    Brett P., 
     

     Not only did this behavior not deserve a court-martial, it’s a crying shame this poor schmuck took such a hit to his retirement.
     

    I’m not so sure that I feel the same way.  It really depends on what she was sending to him.
     
    For any man saying that a Court-martial would be too harsh, let’s say you had a six five, 275 pound gay male Colonel sending you those texts and dick pics.  You are a single dad and you really need that job.  He grabs you by the arms, puts you against the wall, and tries to kiss you.   He continuously texts you at all hours of the night, even though you tell him to stop, and this goes on for months.  I’d probably be a bit pissed if he didn’t face a Court-martial.  
     
    I don’t know if sending him a picture of herself in a bikini is enough to shift degrees of fault to her.  Voluntarily dating him to get ahead over the other people in the office or sharing nekked photos without coercion would make my sympathy level for her victimhood drop dramatically.  But, I don’t know the facts of the case, and I am concerned that the author who thinks military law requires such allegations to automatically go to a Court-martial might could have left some of the things she did out of his article, particularly when it appears that many of the facts in the article came from her.
     
    But, if all the moves were initiated and made by him, then I think a Court-martial would be within the range of reason in this case.  And, I think a huge missing fact upon which this article is premised is whether the Commander was advised by his SJA to take it to an Article 15.

  18. DCGoneGalt says:

    Dirty Harry just quoted Sam Kenison from Back To School.
     
    Well, I’m good for the day.

  19. NavyDude says:

    Mr. Fischer, please tell us more about this 275lb colonel with the dick pics.  Thanks.

  20. k fischer says:

    NavyDude, 
     
    That was just a hypothetical based on the allegations contained in the article modified, so that a male could understand it according to the female’s perspective.
     
    My first reaction was like Brett P., i.e.  What’s the big deal?  He was just a little over aggressive with the flirtation.  But, if I, as a 6’2, 215 pound male, was sexually harassed by a big dude that outranked me, and I really needed a job as a single parent, then how would I react?  I would bust his nose wide open, then report it, but I could see how another male might try to keep the peace and subtly deflect the abuse and harassment.  
     
    From another perspective, I was raised by a single mom and never knew my Dad.  If Jobo was trying that hard to get with my Mom and his attempts were unrequited from the get go, then I would probably want him to face Court-martial.  The only thing that would make me feel like his actions were mitigated would be if there was some sort of personal sexual relationship before she didn’t want him to text her anymore.  I’m not saying that would justify him continuing to harass her, but she shouldn’t lead him to believe that he could stick his pen in her company ink in the first place, if that in fact happened, which nothing from the article indicates they had a sexual relationship.
     
    Here’s an interesting question:  What if Lt. Jobo was a female who was did the same things to a male who was larger than her?  Should she face Court-martial, or would an Article 15 be enough, or would she get a complete pass?  At that point, there would be no male dominated physical dynamic, so it would be a pure non-physical power struggle using employment as leverage and access.

Leave a Reply