- The Washington Times - Sunday, March 30, 2014

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.


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“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.”


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“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’

The push from the top to punish sex abusers seems to be seeping into the justice system.

In the infamous case of Army Brig. Gen. Jeffrey Sinclair, who was accused of violating military ethics and sexual assault in Afghanistan, the military judge ruled that “unlawful command influence” tainted the prosecution.

Outside political forces, including an advocate for the accused, behind the scenes urged a top general not to accept a plea bargain, which he then rejected. Gen. Sinclair pleaded guilty to lesser charges of improper relations with two female officers and conduct unbecoming an officer.

“The Obama administration is wrong in trying to redefine ‘justice’ to mean that a person’s guilt can be proven by accusations alone,” said Elaine Donnelly, who heads the Center for Military Readiness. “The Brig. Gen. Jeffrey Sinclair case was no different from many others, except for his rank. The judge was correct in suspending proceedings when a meddlesome ‘victim advocate’ tried to inject political considerations into the courtroom, egged on by politicians, the media, and nervous Pentagon officials.”

“The ultimate long-term goal should be justice based on truth, not politics,” Ms. Donnelly said.

Defense lawyers across the country have filed motions to dismiss charges based on public statements made in 2012 by Marine Commandant Gen. James F. Amos. During a series of speeches to Marines known as the “heritage brief,” he urged them to “get rid” of sex offenders. Lawyers have argued that the speeches were tantamount to an order to convict.

Promoting victims’ rights

During a Senate debate on whether commanders should be removed from decision-making on serious sex abuse cases, senators seemed to demand convictions.

“Since 2004, I have been sounding the alarm over the military’s ineffective response to the growing crisis of sexual assault in the military, including the need to ensure appropriate punishment for the perpetrators, to provide adequate care for the survivors of such reprehensible crimes, and to change the culture across the military so that sexual assault is unthinkable,” said Sen. Susan M. Collins, Maine Republican.

“Looks like we have lost our bearings for the sake a political cause,” said Mr. Dowd, the defense attorney. “And all of the hysterics and condemnations by the senior officials creates the poison which corrupts the process and leads to unlawful command influence.”

The Pentagon says it is taking the rights of defendants seriously.

“The objective of the department is to achieve high competence in holding offenders appropriately accountable,” said Army Lt. Col. Catherine Wilkinson, a Pentagon spokeswoman.

“The department is committed to providing a fair and equitable system of accountability that promotes justice, assists in maintaining good order and discipline in the U.S. armed forces, and promotes efficiency and effectiveness in the military establishment, thereby strengthening the national security of the United States,” Col. Wilkinson said.

The focus remains on victims.

Col. Wilkinson said the just-passed Defense Authorization Act reformed the Uniform Code of Military Justice by enhancing victims’ rights and limiting the discretion of convening authorities — the senior officers who oversee judges and attorneys in a legal proceeding.

The Pentagon has established a team of victims specialists including attorneys, witness assistance personnel, advocates and paralegals.

“This capability will expand and leverage existing resources to deliver a distinct, recognizable group of professionals collaborating to provide effective, timely, responsive worldwide victim support,” Col. Wilkinson said.

Upcoming surveys

The Pentagon‘ push to spur more accusers to come forward has snared one of the Army’s top prosecuting judge advocates.

In early March, the Army suspended Lt. Col. Joseph Morse from overseeing the prosecution of sex and child abuse cases. The reason: a female Army lawyer accused him of trying to kiss and grope her more than two years ago.

The independent military newspaper Stars and Stripes said the reported incident happened in a hotel room while the two were attending a training session in Alexandria, Va. Lt. Col. Morse was a prosecutor in the Army’s case against Staff Sgt. Robert Bales, who pleaded guilty to massacring 17 Afghans in 2012.

The Army’s Criminal Investigation Command is investigating. No charges have been filed.

Mr. Rinckey, the former judge advocate, said bringing a complaint more than two years after the incident should raise a warning flag.

“It calls into question the credibility of the alleged victim, especially if she was a legal officer trained to understand how the system works,” he said. “To wait three years and then to come out with this allegation, it just smells bad.”

An Army spokesman confirmed the investigation in underway but offered no details.

A Navy Top Gun F-18 pilot has conducted and posted online a study asserting that an “over-focus” on social issues, among a list of other fleet developments, is hurting retention.

“Sailors continue to cite the over-focus on social issues by senior leadership, above and beyond discussions on war fighting — a fact that demoralizes junior and mid-grade officers alike,” Cmdr. Guy Snodgrass wrote this month on the U.S. Naval Institute website, an independent forum for active and retired sailors and Marines.

“Put simply, there is no dollar amount that can be spent, or amount of training that can be conducted, that will completely eradicate complex issues such as suicide, sexual assault, or commanding officer reliefs for cause — yet we continue to expend immense resources in this pursuit,” he said. “Sailors are bombarded with annual online training, general military training, and safety stand-downs — all in an effort to combat problems that will never be defeated.”

The Pentagon’s next annual report on sexual assault, this one on 2013, is due to be released April 30. It will not include survey numbers like the one that derived the 26,000 victims number. That survey will be conducted this year and released next year.

The Pentagon is expected to report a big jump in reported sexual abuse, which it says shows that its drive to persuade people to come forward is working.