Last week, support continued to build for legislation sponsored by Senator Kirstin Gillibrand, D-N.Y., aimed at improving the military’s approach to addressing allegations of sexual assault. Gillibrand’s bill would grant military prosecutors sole authority to bring such cases to trial or resolution. Under the current system, this power lies with unit commanders, most of whom claim no legal or criminal justice training.
Victims’ advocates have touted Gillibrand’s bill as an important corrective measure.
But the bill isn’t just a step in the right direction for survivors of sexual assault.
It also adds an extra layer of protection for the accused.
Currently, I serve as lead defense counsel for Army Brigadier General Jeffrey Sinclair, who awaits court martial on two charges of forced oral sex. While it may seem counterintuitive, I believe my client would be better served under the system proposed by Gillibrand.
For too long, many commanders discouraged assault victims from officially reporting their claims, and worked behind closed doors to dispose of such cases with little or no investigation or review. As a result, many service members — particularly women — were rendered powerless, while assailants feared little reprisal from a system that favored silence over sanction.
But recent events have swung the pendulum in the opposite direction. Under pressure from Congress to clean up its act, the military is now cracking down hard on alleged cases of sexual assault – so hard, in fact, that it seems unable to discern which cases have merit, and which do not.
The case of General Sinclair is instructive.
A decorated combat veteran with 27 years of service, Sinclair spent most of the past decade in Iraq and Afghanistan, away from his wife and children. While deployed, he made a serious error in judgment and entered into an extramarital relationship with an Army captain. When that relationship unraveled almost three years later, the captain became extremely distraught and reported the affair to Sinclair’s direct superior. She later amended her confession to claim that on two occasions, Sinclair compelled her to perform oral sex.
If convicted, he could face life in prison.
On the merits, this case should never have been brought to court martial. There is no physical evidence, the accuser cannot name the dates on which the two alleged incidents of assault took place, and her story continually changes. Her journal entries from this time period, as well as hundreds of text messages that she exchanged with Sinclair, paint a picture of an intense consensual affair gone bad.
Moreover, the accuser came close during a pre-trial hearing to walking back from her charge.
It is the defense’s assertion that she added the claim of assault, days after first reporting the affair, because her military defense attorneys advised her that doing so offered her protection against her own misconduct of adultery and fraternization, both of which constitute crimes under the Uniform Code of Military Justice.
As a former federal prosecutor, I can honestly say the charges against Sinclair are about as weak as any I’ve ever seen. Even if one doesn’t believe my client, the burden of evidence rests entirely with the prosecution, and the evidence disclosed in this proceeding does not come close to satisfying that standard.
Unfortunately, under the current system, military prosecutors enjoy no discretion whatsoever as to whether the charges should have been brought. They had little choice but to bring charges, and they have no ability to seek to resolve the case without criminal sanction as is typical of adultery and fraternization – charges that normally are handled administratively, though they can end an officer’s military career and have financial implications.
Under the current system, discretionary authority rests with unit commanders. Unit commanders, in turn, face very real pressure from Congress, the Joint Chiefs, and the President to weed out sexual predators and bring them to justice. They risk damage to their own careers should they exercise discretion in a way that appears forgiving of sexual assault. Indeed, they have essentially been told to prosecute first and ask questions later.
As a civilian attorney, I’ve learned a great deal about the military over the past several months.
I do not doubt the integrity and good intentions of Army generals, and I respect the sacrifices they and other service members make every day to preserve our freedoms. They aren’t trying to railroad my client, but they’ve been left little breathing room by a system that has all but instructed them to throw the book at the accused, regardless of the facts.
Senator Gillibrand’s bill won’t fix the system entirely, but it will create very real protections for both victims and the accused. We should all share a commitment to addressing the very real problem of sexual assault. We should be equally committed to ensuring that the system affords the accused his constitutional rights. The two goals need not be mutually exclusive.
Richard Scheff is chairman of Montgomery McCracken Walker & Rhoads, LLP. He is lead defense counsel for Brigadier General Jeffrey Sinclair.