The push from the commander in chief, generals and politicians to punish sexual offenders has become so relentless that it endangers the fairness of the military justice system, defense lawyers say.
They worry that a cacophony of public statements vouching for accusers and demanding justice can sway military judges and jurors who are trained to take lawful orders.
A military judge already has ruled that “unlawful command influence” infected the infamous case of an Army general charged with a string of sex offenses.
“I think it’s troublesome when you have the president and the secretary of defense making certain pronouncements about what’s to be expected for sexual assault,” said Greg Rinckey, a former Army judge advocate whose firm represents military defendants. “I mean, it’s one thing to say it’s a serious matter and needs to be handled and investigated.
“But it’s another thing to come out and say anyone who is convicted of a sexual assault should get a dishonorable discharge,” he said. “Each case has to be handled on a case-by-case basis. The facts of each case are different.”
John M. Dowd, a defense lawyer who charged the Marine Corps commandant with unlawful command influence in a dereliction of duty case, likened the political climate in Washington to a “hanging party.”
“We seem to be in a climate where folks can pick and choose which part of the criminal justice they like depending on their particular bias and political correctness,” Mr. Dowd said. “It does not seem to matter to the political and chattering classes that female officers are free to perjure themselves in sexual harassment cases without consequence. Perjury is a serious crime which subverts the entire system of justice. Do the ends justify the means? Is it more important to protect the system or just have a hanging party based on false accusations?”
The Obama administration last year selected sexual assault in the military as a prime topic after a Pentagon survey found that 26,000 active-duty troops — 12,000 women and 14,000 men — said they were victims of “unwanted sexual contact” in 2012. Such behavior is defined as abusive sexual contact up to and including rape.
The number officially reported to commanders was much smaller: 2,949 military victims in the 1.39 million active force. The report said the justice system disposed of 444 “unfounded allegations.” Defense attorneys point to this number to argue that each case must be judged on its merits. False accusations have risen 35 percent since 2009, the report states.
The military’s sex abuse survey produced statistics similar to those in the civilian world. Still, the figures triggered a wave of denunciations from President Obama, Defense Secretary Chuck Hagel and lawmakers on Capitol Hill.
“When a member of our military is assaulted by the very people he or she trusted and serves with, or when they leave the military, voluntarily or involuntarily, because they were raped, that’s a profound injustice that no one who volunteers to defend America should ever have to endure,” Mr. Obama said in January.
Army Secretary John McHugh, a former Republican House member, in November issued an order directing all soldiers convicted of sex offenses to be discharged. Those convicted overseas are to be sent stateside for separation procedures. Army commanders no longer can decide a soldier’s career on a case-by-case basis.
In May, Mr. Hagel said of accusers: “They have to feel confident that if they come forward, that, in fact, they can rely on our system of justice and, in fact, action will be taken and responsibility at all levels of command will be implemented and commanders will be held responsible. The victims won’t be penalized, we will do something about it, and we will get control of this.
“I have said clearly in my statement that we’re all going to be held accountable at every level of command for every one of these incidents,” the defense secretary said.
‘Truth, not politics’