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The Impact of Politics on Military Justice

In what many Americans may have seen as an eerie echo of the “House of Cards” television series, last week an effort to change the way sexual assaults of military personnel are prosecuted failed to amass the 60 votes needed to end a filibuster. It was an issue on which normal party and ideological lines were completely blurred as Democratic Senator Kirsten Gillibrand, the primary advocate for the bill, was joined by Republicans such as Minority Leader Mitch McConnell, Ted Cruz and Rand Paul and opposed by her normal liberal allies like Carl Levin and, more crucially, Claire McCaskill. While Gillibrand claimed that opponents of taking such crimes out of the military chain of command “turned their back” on the survivors of sexual assaults, they responded by saying that this reform might have unintended consequences. One such critic of the bill was Amy Davidson who wrote in The New Yorker last week that this change might actually result in fewer prosecutions of assaults.

 Given the experiences of many rape survivors in the military, Gillibrand’s stand is hard to argue with. While, as Gillibrand has noted, every secretary of defense has enunciated a zero tolerance policy for the past 20 years, the number of assaults continue to rise with many in the military still convinced they have more to lose by speaking up about these crimes than by staying silent. But, as the New York Times’ coverage of a sensational sexual assault case now being tried at Fort Bragg, North Carolina shows, the military’s desire to avoid being labeled as insensitive to this issue may be leading to some poor decisions. The trial of Brigadier General Jeffrey A. Sinclair for sexual assault of a female officer with whom he had an affair illustrates just how messy the nexus between politics and justice can be in the military.

Davidson made the following argument about why Gillibrand’s reform might backfire:

 Is any involvement by the chain of command in sexual-assault cases a mistake? Gillibrand would say yes—that it’s a conflict of interest. She is disappointed that Obama didn’t put his weight behind her bill now. Many survivors and advocates who have long, painful experience with the workings of the military would agree.

One can fully respect that view and not share it. It’s not just that, as many around the military argue, this is how it works for all sorts of crimes. McCaskill, who has prosecuted sexual-assault cases herself, has argued that, as well-meaning as it sounds, pulling out sexual assault in this way would result in fewer prosecutions. Part of the reasoning is technical and structural: while commanders are motivated by discipline and order (as well as, one hopes, respect for the law and concern for and loyalty to all their troops), prosecutors are often looking for cases that they can win. If it is left up to the prosecutors alone, they might have a more jaundiced view of how a jury would hear a witness than does a commander—again, no longer the unit commander, and no longer alone.

The Sinclair court martial seems to demonstrate the truth of this assertion. Sinclair is accused of coercing a junior office into sexual relations and then threatening her if she told anyone about what had happened. But the chief military prosecutor in the case withdrew from the court martial because he believed the evidence showed that the alleged victim in this case — who acknowledges that she had a three-year affair with Sinclair — had been untruthful and that the most serious charges of assault against the general should be dropped. He was overruled and the case has gone to trial only on those counts since the general has entered a guilty plea on the lesser charges of having an inappropriate relationship. The victim has testified about what she says is the general’s violent behavior and his threats. Sinclair, who was once the deputy commander of U.S. forces in southern Afghanistan and a rising star in the army and whose future in the military is now finished, claims the female officer only accused him of rape after he refused to leave his wife as well as to avoid prosecution herself for adultery after their affair was revealed.

Davidson’s point about experienced prosecutors being reluctant to go to trial without an open-and-shut case seems to be vindicated by what happened here. The military establishment has been rightly excoriated for a lackadaisical approach to sexual assaults as well as a culture of apathy toward the victims. But it may be overcompensating for that here by deciding that the bad press and probable political firestorm that would have resulted from a dismissal of rape charges against a high-ranking officer was far worse than going to trial with a case that seems unlikely to result in a conviction or to be upheld on appeal.

As Davidson writes, previous reforms of the Defense Authorization Act have made it easier for such prosecutions to continue and to take the immediate unit commanders out of the decision since they may be part of the problem. She also argues that the growing number of female officers is creating a better atmosphere in the military for dealing with the problem. However, it may also be that the Sinclair case points out the pitfalls of expecting the military chain-in-command to deal wisely with these issues. Gillibrand rightly worries about officers who want to cover up these crimes or are involved with them being part of the process of victims seeking redress. But by the same token, an army that is worried about being branded as soft on rape may proceed with shaky or unsubstantiated cases that would never be prosecuted in civilian courts.

The more the Times reports about the Sinclair court martial, to which they have devoted a steady stream of articles, the more Gillibrand’s assertion about the military’s incapacity to deal with these cases appears to be justified. Georges Clemenceau, France’s prime minister during World War One famously said that, “military justice is to justice what military music is to music.” The less the soldiers have to do with prosecuting rapes committed in the military, the better it may be for both the victims and the cause of justice.

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