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Originally published March 22, 2014 at 2:57 PM | Page modified March 22, 2014 at 8:07 PM

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A question of military justice in sexual-assault trials

The end of two high-profile military sexual-assault cases last week shoved the question of military justice back into the political debate.

The New York Times

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WASHINGTON — Two highly publicized military sexual-assault cases last week appear to strengthen the argument of those who want to take such cases out of the hands of military commanders, but not only for the reason that has been widely debated in Congress, which is that the hierarchy is unfair to women.

Instead, critics say, the slap on the wrist delivered to Brig. Gen. Jeffrey Sinclair, who was accused of sexually mistreating a subordinate, and the not-guilty verdict delivered to former Naval Academy football player Joshua Tate, who was accused of sexual assault reflect a military command that bowed to political pressure and brought bad cases to trial.

The end of both trials Thursday, less than two hours apart, shoved the question of military justice back into the political debate. More significantly, the outcomes left lawyers for the accusers and the accused criticizing the military’s legal system from opposite directions but arriving at the same conclusion: Justice was subverted, and sexual-assault cases should be prosecuted by military lawyers, not commanders who have inherent conflicts of interest.

From the point of view of the two accused men, commanders who were under political pressure to stop sexual assault within their ranks overreacted and pushed questionable cases to trial — and failed to heed the advice of lawyers who noticed red flags.

“We went through this whole process because the superintendent of the Naval Academy fell prey to political pressure,” said Jason Ehrenberg, the lawyer for Tate, the midshipman who was acquitted of sexual assault. The system, Ehrenberg concluded, “is broken.”

That is the same conclusion reached by victims’ advocates. But from their point of view, military commanders with careers at risk because of the stigma of sexual-assault charges within their ranks treat female accusers unfairly and often suppress victims from fully reporting.

Sen. Kirsten Gillibrand, D-N.Y., who failed to push a bill through Congress that would have removed military commanders from the prosecution of sexual-assault cases, has said it is “like your brother committing the sexual assault, and having your father decide whether to prosecute.”

Either way, said Paul McHale, a former assistant secretary of defense: “The very clear conclusion that must be drawn from these cases is that a commander who is assessing a prosecution is burdened inevitably by self-interest.”

The two cases may put new pressure on federal lawmakers. “I do think that the fact that both defendants and victims agree that the system is broken makes it pretty clear that Congress has to act,” said Susan Burke, one of the lawyers representing the female midshipman at the Naval Academy who accused Tate, her classmate, of sexual assault.

Eugene Fidell, a Yale University expert on military justice, said the cases could add to the fears many victims already have about reporting sexual assault. “We have to make sure that there’s public confidence in the administration of justice,” he said. “And right now, there is not.”

The Senate on March 6 rejected an intensely debated bipartisan bill that would have removed military commanders from decisions in the prosecution of sexual-assault cases, a defeat for Gillibrand and advocacy groups who argued that wholesale changes were necessary to combat an epidemic of rapes and sexual assaults in the military.

The bill’s proponents repeated this statistic: In 2012 there were an estimated 26,000 sexual assaults on military men and women, but only 3,374 were reported and only 880 cases were prosecuted. The implication is that keeping prosecution of those cases within the chain of command intimidates victims, who fear retribution from reporting sexual assault to their commanders.

But the Pentagon and Gillibrand’s main opponent in the debate, Sen. Claire McCaskill, D-Mo., argued that military commanders would be more forceful in pushing the cases than military lawyers who did not have as much at stake. A Pentagon spokeswoman, Cathy Wilkinson, said the two cases were “an example for why commanders are more aggressive than lawyers.”

In the Fort Bragg trial of Sinclair, a case that had once looked promising unraveled when a military judge allowed the general to offer a plea agreement on lesser charges after ruling that a senior Army official might have been improperly influenced by political considerations. The judge, Col. James Pohl, suggested that the commanding general with ultimate authority over the case might have been worried about potential public fallout from not prosecuting Sinclair to the fullest.

The result of the two cases means even fewer assault victims will come forward, critics say. “No one has any confidence in the system after a case like this,” Gillibrand said, referring to the Sinclair case. “Prosecution has to be unbiased and can’t be based on politics. It should be based on, ‘Was a crime committed?’ ”

She called it “infuriating that justice wasn’t served.”

Civilian lawyers point out that sexual-assault cases are never easy to prosecute, because by their nature they often come down to the accuser’s word against the accused.

“These are the weakest and toughest cases in the criminal-justice system,” said John Fitzgibbons, a former federal prosecutor.

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