Crackdown on military sex assault may have unintended consequences

05/09/2013 4:54 PM

05/16/2013 6:58 PM

The scales of military justice might tilt as the Pentagon, Congress and the White House mobilize against sexual assault among the troops.

Put another way, it will get tougher for defendants; maybe, some fear, unlawfully so.

“What we are seeing now is the complete politicization of military justice in a way that would have shocked the members of Congress who passed the Uniform Code of Military Justice,” Marine Corps Reserves Maj. Babu Kaza, a prominent military attorney, said in an interview.

Largely unseen by the public, dozens of Marine Corps sexual assault cases from North Carolina to California already have been roiled by defense claims of unlawful command influence due to tough talk by military leaders. The claims, some directly reviewed by McClatchy and some described by lawyers, target the unique vulnerability of military courts to a superior officer’s will.

A McClatchy review further shows that out of the public eye, military judges are questioning an Air Force program that provides alleged victims with special legal assistance. Even the scope of the military sexual-assault problem is an issue, as it’s subject to both underreporting and overstatement.

“If commanders, military judges, military lawyers and members of a military jury must now accept that politically unpopular military-justice decisions will draw the condemnation of our civilian leadership, and possibly have a negative impact on their careers, then the entire system is fraudulent,” Kaza said

After a series of high-profile episodes that culminated with release of a Defense Department study that said 3,374 military sexual assaults were reported in fiscal 2012, the talk is escalating.

In recent days, Defense Secretary Chuck Hagel called for actions that would change “the perception that there is tolerance” of sexual assault in the military. Military leaders, Hagel added, “will be held accountable for preventing and responding to sexual assault.”

Hagel echoed President Barack Obama, the commander in chief, who mandated Tuesday that people “engaging in this stuff, they’ve got to be held accountable: prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.”

Key lawmakers have been equally adamant.

Sen. Claire McCaskill, D-Mo., a member of the Senate Armed Services Committee, said “the military justice system needs to change to hold sexual predators accountable.” McCaskill further said that the arrest Sunday on sexual battery charges of the Air Force officer who’s in charge of sexual assault prevention was “one of those times you can send a message” through the appointment of a replacement. Sen. Patty Murray, D-Wash., a member of the Senate defense appropriations panel, added that “the culture” must change.

The Air Force officer, Lt. Col. Jeffrey Krusinski, was arraigned in civilian court Thursday, after Northern Virginia prosecutors declined the military’s request to take over the case.

“Sexual assault,” Hagel said, “is a despicable crime.”

Similarly strong words last year by the Marine Corps commandant and a former top military judge underscored the unlawful command influence problem that some fear may now be exacerbated.

Unlawful command influence is what happens when military authorities unduly influence their underlings, or appear to. The authoritative text, “The Military Commander and the Law,” published by the Air Force Judge Advocate General’s School, specifies, as an example, that “superior commanders must not make comments that would imply they expect a particular result in a given case or type of cases.”

Attorneys dispute whether this covers civilians.

The Marine Corps commandant, Gen. James F. Amos, clearly was covered when he addressed sexual assault last year in a series of speeches. He denounced lenient officers as “soft,” and declared that “80 percent” of sexual assault allegations are “legitimate.”

“I want the staff NCOs in here and I want the officers in here, the commanding officers and the sergeants major to take a hard look at how we are doing business,” Amos said at Parris Island, S.C., on April 19, 2012, a transcript shows.

In the aftermath, McClatchy has learned, Marine Corps defendants in more than 60 sexual assault cases filed unlawful command influence claims. Judges in nearly all the cases that have been litigated found the appearance of unlawful command influence, providing the defendants relief on matters such as jury selection.

Last September, for instance, a trial judge ruled in a sexual assault case at Parris Island that the commandant’s speech gave at least the appearance of unlawful command influence. Similar claims have been litigated at many other Marine Corps or Navy facilities, including Cherry Point and Camp Lejeune in North Carolina, Camp Pendleton in California and in Jacksonville, Fla., among others.

In the top-down military, moreover, the boss’s words may amplify across the ranks.

Last June, Marine Corps Lt. Col. R.G. Palmer, serving as a military judge, delivered an incendiary talk to junior officers.

“Congress is saying that we need more convictions,” Palmer said, according to the sworn accounts of junior officers. “As trial counsel, we need to go after these scumbags. . . . We need to crush these Marines and get them out.

“The commandant is ordering us to be more strict on criminal cases,” Palmer added, according to sworn statements. “We need more convictions.”

Palmer subsequently left the military bench, and some of his trial rulings are now under appeal.

The increasing attention, moreover, doesn’t always clarify the extent of the problem. Sexual assault certainly happens more often than people know. The new Pentagon report that identified 3,374 military sexual assaults in 2012 also estimated that only about 11 percent of assaults were reported.“Sexual assault is a vastly underreported crime,” noted Army Maj. Gen. Gary Patton, the director of the Pentagon’s Sexual Assault Prevention and Response Office.

Amid political debate, though, ambiguous details get overstated. A survey released this week, based on answers from about 2 percent of active-duty military personnel, led to the extrapolated conclusion that 26,000 troops may have been sexually assaulted last year. A previous extrapolation estimated that 19,000 were sexually assaulted in 2010, an estimate that covered many behaviors and spurred exaggerated summaries.

"The Department of Defense still testifies that there are 19,000 rapes that occur in the military every year," Rep. Jackie Speier, D-Calif., said in a speech at the House of Representatives on June 15, 2011, "and we have done nothing about it."

Speier has introduced three bills since January that address military sexual assault. One, supported by 108 House co-sponsors, would remove sexual assault cases from the usual military chain of command and place them with a special prosecutor’s office, whose director would be appointed by a new civilian-dominated council.

Pentagon officials are coming up with ideas of their own, some with unforeseen consequences.

Hagel, for instance, voiced interest in expanding a new Air Force “special victims counsel” program. But a trial judge in a New Mexico court-martial last year, in a case McClatchy reviewed, limited the courtroom authority of the special victims counsel, citing in part the need to retain the appearance of an impartial judiciary.

An appeal in the case will be heard next month.

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