Is This Really “Unlawful Command Influence”?

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Last week, in two pre-trial sexual-assault hearings in Hawaii, Navy Judge Commander Marcus Fulton ruled in favor of defense motions that recent comments about military-sexual assault made by President Obama “would unduly influence any potential sentencing.”

Oh boy. This ruling is not a good thing.

During his May 7 remarks to reporters, the President stated that he had no tolerance for sexual assault in the military, and that he expected guilty people to be held accountable for their actions. “I expect consequences…So I don’t just want more speeches or awareness programs or training,” he said. “If we find out somebody’s engaging in this, they’ve got to be held accountable — prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged. Period.”

This ruling suggests that if the defendants in these cases are found guilty, they cannot be punitively discharged. It means they cannot be given a bad conduct discharge or a dishonorable discharge, both of which reduce or remove any veterans benefits they may receive when they leave the service.  In other words, the full extent of the law cannot be used against the defendants.

Justice will not be served.

Now, I am not  a JAG corps office or a lawyer; nor do I play a lawyer on TV. But while I was in the Navy, I did have to deal with disciplinary matters, conduct Article 15 hearings, investigate misconduct, and recommend  persons to courts martial if the crime necessitated such action.

I did not have courts martial convening authority, but as an unrestricted line officer with knowledge of the Uniform Code of Military Justice, and some training in legal matters during my naval career, I was able to serve on courts martial panels. And I personally cannot see how the President’s statement, a general statement of cause and effect, is “undue influence” in these two specific cases.

What I heard is a commander-in-chief telling the military leadership at large that the specter of sexual violence in their ranks is a moral outrage and it must be stopped.

Apparently this is not the first time the defense has used this tactic. According to Stars and Stripes, defendants in more than 60 sexual assault cases in the Marine Corps filed unlawful command influence claims after comments made by General James Amos, who as commandant is the corps’ top officer. He apparently noted that he felt that 80% of sexual-assault claims were legitimate, thus supposedly influencing the results of any sexual-assault courts martial. Judges in almost all the cases found for the defense.

I understand that our system of justice is that the accused is innocent until proven guilty. However, if the evidence supports a conviction, then it is the legally imperative and morally responsible thing to do.

I find this most recent ruling one that will have repercussions throughout the military. The sexual-assault problem is bad enough without giving the perps a “get out of jail free” card before they’ve even been tried.

I guess that is one reason why the military service chiefs seemed to waffle on their responses to the Senate Armed Services Committee June 4 hearing on sexual assault.

Rather than the President mandating a dishonorable discharge, what is really happening is that military lawyers are providing another means for scumbags to avoid consequences of their actions.  And that is unlawful influence in the wrong direction.