Actual justice for sexual crime in the military — a better way
By Sam . . . While the NDAA (National Defense Authorization Act) is massive, Senator Kirsten Gillibrand’s bill to reform the military justice system is pretty straightforward. I have read it in its entirety and, at least as it is written, this bill increases protections for the accused and helps bring back some semblance of due process in the military. Ideally, the military would disentangle itself from the prosecution of these (and other) crimes all together and allow true professionals – civilian law enforcement — to handle them, but barring that, this is the next best thing.
Senator Gillibrand is correct in stating that the prosecution of sexually violent crimes needs to be removed from the chain-of-command and given to neutral officers who are legally trained, although she came to this understanding incorrectly. Her bill is premised on the motion that commanders were not vigorously pursuing prosecution of sexually violent crimes but rather were sweeping accusations under the proverbial rug in order to protect themselves and/or the accused or due to alleged victims who said they feared “retributions” if they reported. Any such “sweeping” or attempts at retribution are literally not possible in the current military system. Furthermore, there’s no factual evidence to suggest that this is happening. All that does exist is anecdotal statements by women that they were not taken seriously when they made a report, which is the logical equivalent of declaring a neighborhood to be a high crime area based on unreported robberies. The truth is that the military prosecutes and incarcerates at a higher rate than civilians. The reason that many accusations never see trial is not because a coverup exists but rather because they are weak or baseless. As for protecting the accused, units cut ties with the “rotten apple” in their midst as quickly as they can.
As for why the bill is good, it is self-evident that legal professionals should be in charge of determining whether or not a case will proceed to trial. As an example, during my preliminary hearing, which is known as an Article 32 hearing, similar to a grand jury, an impartial lawyer called a preliminary hearing officer (PHO) found no probable cause and therefore recommended that my case not proceed to court martial. The recommendation is not binding, however, and it was overridden by my chain-of-command, a colonel with no legal background whatsoever. The PHO was concerned about due process and fairness; my colonel was concerned about bad PR for the unit and someday making general.
If Senator Gillibrand’s bill had been law, my case would have never made it to the preliminary hearing stage, and I would be home right now wrapping gifts instead of in prison. Her bill requires a legal professional in the rank of O-6 (colonel in the Army, Marines, and Air Force and captain in the Navy), ranks which require experience and ability to achieve. This officer will determine whether or not the charges should be pursued. Here is the key: Under the senator’s bill, this officer needs to be outside the chain-of-command of the accused and the accuser. Without the numerous biases with which untrained commanders have to deal, weak cases and cases lacking in merit are less likely to proceed to court martial.
I believe Senator Gillibrand’s bill will have the effect of lowering the number of wrongful convictions in the military, and it will help shine light on the frivolousness of the cases in the first place. This will of course lead to consternation for many who want to see convictions rise in lieu of real justice, which is what has led us to the problematic position we are in now. Of course, there are potential problems with the bill. For example, it remains to be seen whether or not the aforementioned legal professionals will be appropriately promoted, but, absent any evidence of this right now, I count this bill as a positive one and quite possibly a major one.
Sam is a member of the U.S. Army and is currently incarcerated at the Midwest Joint Regional Correctional Facility at Ft. Leavenworth, Kansas.
Just like in the Civilian World, it is all about putting feathers in your caps for Advancement….
…Legal Decisions must be made outside the chain of command; however, I am sure that commanding officers will put pressure on the ‘neutral ones’….
at least this is a step forward as opposed to a step backward…..at least there is more transparency……or the appearance of transparency…..
Military Tribunals’ intentions are more fact based than drama based…..
Kudos to Mr Sam…..
thanks
As one who was railroaded by the UCMJ, I disagree with the author. Her part of the bill won’t enhance anything beyond getting her more votes by her NY constituents and others who feel she is working for them (possibly during a presidential campaign). She has long had grievances with the military legal system (I won’t call it justice because it is not and it is busted). If the Senator truly cared about alleged military justice in the broken system, she would see to it that the UCMJ has a unanimous vote to convict criteria and not the current 75% which was just 67% until a few years ago. I say this because I did not have a unanimous vote to convict in my military case as I found out in my clemency paperwork submitted to the Convening Authority but still was convicted.
Real change is when the Article 32 hearing was made by law to be recorded with copies given to the defense because it brought the military system more in line with the civilian legal system when previously it was not. Before then, too much power was given to individuals to say whether they could be or not and whether they needed to be given to the defense.
I, too, had an Article 32 Investigating Officer say they case would be she said/he said and should not be pursued, but the powers to be above them decided to go forth with it anyway because they were under pressure from Congress and this particular Sen to do more. The particular individual who made the call ended up lying in the docs they wrote to justify this move and since made it in the upper echelons of the service before being stopped because they denied a service member what they are required to have.
Those civilians who will be in charge of this and those who are at rank who will be part of this will continue to do what they think is right and then be brought on the carpet to ask why they went a certain way if it is not in line with what this Sen and others will want to happen. They will never accept anything less than 100% charged and convicted. Because of the way the military is under civilian control, they will always get to be jerked around by those who have never served but think they know best. There will be those who have served who think they will know best as well but will in the end follow the votes/money because they too enjoy the perks of being an elected official more than the values that got them elected. People have always ascended on the backs of others and the military is no different whether in the legal environment or otherwise across the services. It will be more of the same going forward and wrongly impact those it should not be. “Power corrupts; absolute power corrupts absolutely”
While the onus for Article 120 prosecutions is needed and the effort to root it out of the military is also needed, until the system is truly just and balanced for both parties in the adversarial legal system, it will continue to be lopsided to those who hold the purse strings of those who are implementing it.
Thank you NARSOL for the space to share my dissent. I will need to look into the NDAA now for more misgivings in the military legal machine.
I agree, I think the Senator is only trying to legitimize this foul system they have cooked up. My case was decidedly weak in the eyes of the Art 32 Judge, but they decided to pursue with the General Courts Martial. I even had the judge of my courts martial helping the defense in some bizarre twist. Then I was convicted, but not unanimously. Appeals…. a joke. 24 years down the drain on a hearsay case. I never thought it would see the light of a court room, but I still remember walking into the Area Defense Council (ADC) office and the paralegal telling me, “ALL sexual assault cases see their day in court, no matter what”. Modern day witch trials and good ole’ Senator Gilbrand will be sure to keep the convictions coming.
As someone who was court martialed in the military for my offense, I think this bill is unnecessary as it appears to be written. The problem it tackles does exist, but this bill won’t fix it.
The problem is that many times command doesn’t charge the accused as the senator stated. This doesn’t seem to alleviate that problem. The bigger problem is false convictions though.
This bill only appears to change the recommendation of charges. That does nothing for false convictions as the writer appears to be claiming. If he didn’t do the crime and still got convicted, which happens a lot in military court, it has less to do with referring charges and more to do with the trial itself.
Let me explain how a criminal jury works in the military. The concept of “beyond a shadow of a doubt” doesn’t exist. A military jury is normally just 5 people and it’s a majority rule system, so if 3 say guilty, you’re guilty. There’s no such thing as a hung jury because it’s always an odd number. Furthermore, your “peers” are service members with high rank and status regardless of the accused rank. A private will have a jury of master sergeants and colonels. This system is not representative of American due process. This is what needs to be addressed and changed.
@Jeremy
Just a clarification – The type of court martial and the charge(s) will determine the number of panel (not jury) members. A capital murder charge will have a full panel and a unanimous conviction requirement. Other charges can have less panel members down to five (5) overall with only 75% required to vote to convict (by law of today). However, your point of “beyond a reasonable doubt” not existing in the military legal system is spot on. IT DOES NOT EXIST. This is because “good order and discipline” need to be maintained in the minds of those who are in charge of the military (in uniform and in suits).