Sinclair case shows need for moving sexual assault charges outside military justice

March 17, 2014 

Kirsten Gillibrand, Democratic senator of New York, had it right when she tried to shift sexual assault cases and the decision on whether to prosecute them away from the military chain of command. Unfortunately, Gillibrand was up against traditions of the armed forces – which are rarely changed, much less overturned – and some reluctant senators. She failed to get the votes she needed.

But now, watching the complexities of the sexual assault case against Brig. Gen. Jeffrey Sinclair drag on for two years, the public has had a troubling but close view of why such prosecutions should indeed be left to prosecutors and not be handled at the discretion of commanders.

The case of Sinclair, who was tried at Fort Bragg, started to unravel when Army prosecutors apparently concluded their chief witness, the general’s former lover, had lied at a pre-trial hearing. So they scrambled to make a plea bargain in which sexual assault charges would be dropped.

Congress is prepared to back some reforms in the military justice system to better protect alleged victims, but more radical changes are needed. The military has been plagued in recent years by more accusations and reports of sexual assaults – thousands of them.

Gillibrand admirably has made a cause of change. But even with the compelling case she made, the military leadership fought against losing any power when it came to commanders’ deciding whether prosecutors should proceed in military court.

One problem is that high-ranking military officers often ascend the ranks with one another, perhaps even having gone to military academies together or having fought beside each other. The fact that an officer is likely to have highly placed friends in the command can intimidate sexual-assault victims and keep them from pressing charges. Indeed, in the debate over Gillibrand’s proposals, it was reported that only a small percentage of accusations ever turn into prosecutions. Of the estimated 26,000 cases of unwanted sexual contact in the U.S. military in 2012, only 3,000 were reported and 300 prosecuted.

Military courts certainly are capable of delivering justice. There are times when keeping prosecutions under the military’s system is entirely appropriate: when hazardous behavior results from combat conditions or when orders are disobeyed or in other cases unique to the military.

No one is suggesting that system should work like Wake County District Court.

But a clear problem exists with sexual harassment and assault in the military. The male officers who dominate the chain of command, who hold by far the largest number of top posts, believe there are sacred bonds in the ranks. That may be healthy when it comes to combat or to organizing large-scale military operations where commanders need to collaborate based on shared experience, but it’s a culture that can be intimidating to assault victims.

Officers also might find it hard to ignore, when considering charges, what the effect of a prosecution or conviction is likely to be on another officer’s career.

But when charges of sexual harassment or worse by others wearing a uniform are involved, only justice matters.

The truth is, Gillibrand’s original instinct to remove commanders from the process of deciding whether to proceed with prosecutions was absolutely correct. And given the Sinclair case – and Gillibrand’s continuing interest in examining other cases and getting people to come forward – the day may come when such prosecutions should be removed from the military system altogether.

The Sinclair case has been embarrassing for the military. It has prompted cynicism from the public, defensiveness from staunch supporters of the military in Congress and justifiable criticism from those such as Gillibrand who believe the military’s resistance to change is not good. Indeed, it is not.

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