- The Washington Times - Thursday, March 27, 2014

Both sides in the military sexual assault debate are finding ammunition in last week’s sentencing of Army Brig. Gen. Jeffrey Sinclair — one of the highest-profile court-martial cases in military history, and one that shows just how tricky it could be to reduce the assault rate in the ranks and successfully punish offenders.

Gen. Sinclair pleaded guilty last week to adultery with a female captain and inappropriate sexual relationships with two other female officers. But under pressure from a judge, prosecutors didn’t pursue sexual assault charges in the plea deal.

The general received a reprimand, as well as salary and restitution penalties totaling about $25,000, but he was given no prison time and remains eligible to collect his pension and benefits.

Some lawmakers say the case shows that military commanders are the most aggressive in pursuing assault charges, which is a message they said the military should want to send.

But congressional critics of the system said Gen. Sinclair’s case, which was brought by a superior officer, shows commanders can botch such cases and that job should be given to trained prosecutors.

“This is a sexual predator,” Rep. Jackie Speier, California Democrat, told Secretary of the Army John McHugh at a House Armed Services Committee hearing Tuesday. “For a sexual predator to gain this rank and [be] given a slap on the wrist suggests that the system doesn’t work.”

Mr. McHugh told lawmakers he is still reviewing the case and has the option to demote the general and sharply reduce his retirement pay. “The process is still ongoing,” he said.

But outside observers said the verdict shows the complexity of the problem and the difficulty of finding a solution.

“The way the system is set up now is a double-edged sword. Prosecutors get frustrated because there are cases they want to try that commanders won’t bring to court,” said Greg Jacob, a former Marine and policy director for the Service Women’s Action Network, which supports giving prosecutors final say. “There are other cases they know aren’t winnable, but they’re forced to try them because overzealous commanders want to show they’re really cracking down on that issue.”

With the military facing what some analysts say is an epidemic of sexual assaults, all sides are looking for a solution. Attention has centered on who makes a final decision on whether to bring a case to trial.

Under the current system, commanding officers have final say, but critics argue that they can be swayed by considerations including favoritism or how charges would affect the morale of a unit. They say trained military lawyers would make better choices.

Sen. Kirsten E. Gillibrand, New York Democrat, took the lead in trying to force that change in a vote this month, but she was blocked by a bipartisan filibuster.

In the Sinclair case, Mr. Jacob said, the commander may have been under pressure to appear tough on sexual assault offenders and pursued the most serious charges despite the prosecutor’s recommendations for a different course.

“The relationship between the prosecutor and convening authority was really adversarial. The commander was not listening to what was going on in the courtroom,” he said. “The prosecutor wound up leaving the case.”

Sen. Claire McCaskill, a Missouri Democrat who led the filibuster against the Gillibrand bill, argued that the Sinclair verdict supports her view that commanders are in the best position to determine whether a case should go to trial.

The prosecutor was willing to abandon the most serious charges despite believing Gen. Sinclair was guilty, a spokesman from her office said, proving that commanders are more aggressive than prosecutors when it comes to getting justice for the victims.

“The prosecutor believes that, as a tactical matter, the charges of sexual assault should be dropped in part because those charges would be difficult to win at trial,” Mrs. McCaskill’s office said in a statement. “If commanders could not launch courts-martial, the brigadier general in this case would likely be off the hook for an alleged sexual assault which both military commanders and prosecutors believe occurred.”

Several reforms championed by Mrs. McCaskill became law in last year’s defense bill, including eliminating the “good soldier defense” for sexual assault cases. That could have led to a different outcome in this case if it had been law, Mr. Jacob said.

The defense allowed commanders to consider a service member’s contributions to the military and good behavior when deciding whether to bring a case to trial and the outcome of the case. As a three-war veteran who contributed a lot to the military, Gen. Sinclair had an advantage over his accuser, who was a lower rank with less experience, Mr. Jacob said.

“If [the good soldier defense] had been in effect, it would have reshaped the lens through which the commander was viewing [Gen.] Sinclair with regard to charges,” Mr. Jacob said.

Some say the high-profile public debate over the Sinclair case is making the system worse.

“The military is held up as the horror show, but the fact is that the military is no better or no worse than the civilian system,” said Gary Solis, a former Marine judge advocate general who teaches at Georgetown University Law Center. “For every military law horror story that you read about or hear about, there are two or three from the civilian justice system.”

Mr. Solis said that worrying about who is able to convene a military trial misses the point.

“It’s causing people to focus on the wrong place, on the convening authority, as [Ms.] Gillibrand did. Changing who prosecutes the cases doesn’t even approach the problem. The problem is not who makes the court-martial happen; the problem is why the conduct happened,” he said. “Nobody wants to talk about that because it’s hard.”

• Jacqueline Klimas can be reached at jklimas@washingtontimes.com.

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