Crackdown on military sex assault may have unintended consequences


WASHINGTON — 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 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 the 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.

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.