Posts Tagged With: Uniform Code of Military Justice

Judge London Steverson, This Is Your Life

 https://www.amazon.com/My-Life-Coast-Guard-Tiger-ebook/dp/B077G9BS5R/ref=asap_bc?ie=UTF8

Judge London Steverson has written the story of his life. Trying to write a book about my life is like trying to describe the landscape by looking out the window of a moving train. The events continue to unfold faster than one can describe them. My life is a work in progress. For this reason I have decided to look at my life in phases that have a clearly defined beginning and an end. In this book I intend to describe that part of my life that was shaped by my involvement in the Martial Arts. 

https://www.amazon.com/Judge-London-Steverson/e/B006WQKFJM


IN A NUT SHELL 
I, London Eugene Livingston Steverson retired from the United States Coast Guard in 1988 as a Lieutenant Commander (LCDR). Later, I retired from the Social Security Administration (SSA) as the Senior Administrative Law Judge (ALJ) in the Office of Disability Appeals and Review (ODAR) Downey, California.
In 1964, I was one of the first two African Americans to receive an Appointment as a Cadet to the United States Coast Guard Academy in New London, Connecticut. I graduated in 1968. After two years at sea on an Icebreaker, the USCGC Glacier (WAGB-4), and another two years as a Search and Rescue Operations Officer in the 17th Coast Guard District Juneau, Alaska, I was appointed Chief of the newly formed Minority Recruiting Section in the Office of Personnel at Coast Guard Headquarters, 7th and D Street, SW, in Washington, DC. My primary duty was to recruit Black High School graduates for the Coast Guard Academy. This was my passion, so I set about this in a most vigorous manner.
I have written several books concerning Military Justice, famous Courts-martial Cases, and Social Security Disability Determination Cases. I am a retired member of the New York State Bar Association, The Association of The Bar of The City of New York, and The Tennessee Bar Associations.
A Presidential Executive Order issued by President Harry Truman had desegregated the armed forces in 1948, but the military academies lagged far behind in officer recruiting.
President John F. Kennedy specifically challenged the Coast Guard Academy to increase appointments to qualified Black American high school students.
I was one of the first Black High School students to be offered such an appointment in 1964. I had a Black classmate from New Jersey, Kenny Boyd. We would become known as “The Kennedy Cadets”, because the pressure to recruit us originated with President John F. Kennedy.
On June 4, 1968, I graduated from the Coast Guard Academy with a Bachelor of Science degree in Engineering and a commission as an Ensign in the U.S. Coast Guard.
My first duty assignment out of the Academy was in Antarctic research logistical support. In July 1968 I reported aboard the Coast Guard Cutter (CGC) Glacier (WAGB-4), an icebreaker operating under the control of the U.S. Navy. I served as a deck watch officer and head of the Marine Science Department. I traveled to Antarctica during two patrols from July 1968 to August 1969, supporting the research operations of the National Science Foundation’s Antarctic Research Project in and around McMurdo Station.
In 1974, while still an active duty member of the Coast Guard, I entered The National Law Center of The George Washington University. I graduated in 1977 with a Juris Doctor of Laws Degree.
I worked as a Law Specialist in the 12th Coast Guard District Office, San Francisco, California and as an Assistant U. S. Attorney for the collection of Civil Penalties under the Federal Boating Safety Act from 1979 to 1982. As Assistant District Legal Officer, I was required to defend as well as prosecute military members who had been charged with violations of the Uniform Code of Military Justice (UCMJ). Occasionally I was asked to represent other officers in administrative actions involving sexual harassment and discrimination. One such case was the Case of Christine D. Balboni . 

 Ensign (ENS) Balboni was one of the first female graduates of the Academy, Class of 1981. She filed the first case of Sexual Harassment case in the military.

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The Case of Cadet Webster Smith, The Last Word

WebsterSmithBookCoverPreview.do

http://www.amazon.com/Case-Cadet-Webster-Smith-Last/dp/1533400806/ref=asap_bc?ie=UTF8

 

Synopsis:

 

We, as Americans, cherish fairness. We like to believe that people are not punished or unjustly rewarded without justifiable cause. We like to dwell on parables of white virtue and black advancement culminating in the flowering of goodwill all around. Events sometimes force us to widen our gaze and focus on terrain we would rather not see. The 2006 court-martial of Cadet Webster Smith at the United States Coast Guard Academy did just that. The Webster Smith case was a litmus test for justice in America. Every once in a while a case comes along that puts our humanity as a people, and as Americans, on trial. Everything that we profess to stand for as Americans was on trial. Our sense of justice in America and particularly in the U.S. Military was on trial. This was no ordinary trial. Our humanity was on trial. Our system of justice was on trial. This case dissolved the deceptive façade and exposed certain moral deficiencies in our system of justice. This case alone puts the legitimacy of the entire military justice system at risk.

Webster Smith availed himself of every path to justice that we have. He filed an Article 138 Complaint under the UCMJ. He faced the Article 32 Investigation with two lawyers. He asserted all of his Constitutional Criminal Guarantees. He knew and made appropriate use of the Right to Counsel, the Right to Remain Silent, the right to a jury trial, the Right to Confront the witnesses against him, the right call witnesses on his behalf, the right to present evidence favorable to him, the presumption of innocence until his guilt was proven beyond a reasonable doubt, and the right to argue his case before the Jury.

His Appellate Counsel, Ronald Machen, was top notch. He became the United States Attorney for the District of Columbia. In April 2015, he left the position and returned to the law firm WilmerHale.  Wilmer Cutler Pickering Hale and Dorr®  has played a leading role in historic events and landmark cases that have shaped the nation and left their mark across the globe. In matters ranging from the Army-McCarthy hearings to the legal defense of civil rights, from the 9/11 Commission to the restoration of the rule of law in apartheid-torn South Africa, their lawyers have made contributions that have profoundly affected our society. Because the law is still a profession as well as a business, lawyers have special obligations to the administration of justice and the development of the law. Their lawyers are  encouraged to meet these obligations through pro bono work. Attorney Machen represented Webster Smith on a pro bono basis. He received no fee.

Webster Smith appealed his conviction all the way to the United States Supreme Court. He lost at the Coast Guard Court of Criminal Appeals. He lost at the Court Of Appeals for the Armed Forces of the United States. The U. S. Supreme Court dismissed his appeal without comment. And, on top of the aforesaid, he filed a Complaint of Discrimination, pursuant to Commandant Instruction 5350.11. He had an air tight and fool proof case of disparate treatment. Yet, he lost. He lost because the System was manned by the most incompetent people God ever created. They did not have a clue as to what was going on in their office. The most significant case in the history of the Department of Homeland Security and the Armed Forces of America came to them and they were not capable of processing it properly.

On top of everything else, Webster Smith had bad luck. At some juncture along the way, most other people would have won, but not Webster Smith. One has to wonder why. There are some who will say that it was because he was Black. They will say that the System was designed and administered by white men and women; and, no Black man can obtain justice in that System. They might have a point, even though some of the decisions made concerning his case were made by Black people in key offices.

We now see that there is little or no justice in military justice. Any reasonable person who looks at this case or any other high profile military justice case would have to conclude that the Military Justice System is not designed to render justice. It is a system designed to punish. The entire courts-martial system, from Summary Court-martial to General Court-martial, has one specific purpose; that is to punish anyone who commits an offense against the Uniform Code of Military Justice.

This is intended to be the definitive word on the first and only court-martial of a United States Coast Guard Academy cadet. The Case of Cadet Webster Smith, The Last Word is written from the perspective of the accused, Cadet First Class Webster Smith. It is not written from the perspective of his accusers. A prior account of this case focused on the women involved. Conduct Unbecoming an Officer and a Lady told the story of the court-martial from the perspective of the witnesses for the prosecution.

Why now? Well, there are several reasons. This Case is unique in that this has never happened before. No other Coast Guard Academy Cadet has ever been punished at a General Courts-martial. That is saying a lot for an institution that has been around since 1876.

Also, it has been ten years since the trial and conviction. An entire decade has passed. The sentence has been served. The Supreme Court Petition for A Writ of Certiorari has been denied. The Record is complete.

Cadet Smith was a senior when the trial began. He was within months of graduating from the Academy, but he was expelled. No Clemency was granted. His career was ruined. His life was irreparably harmed. For ten years he was required to register in the State of Texas as a Sexual offender. He married, had children, and for ten years he was not allowed to attend the birthday parties of his children.

This Case has been hotly debated in certain quarters. The Coast Guard has tried its best to forget that this court-martial ever occurred. However, I fear that this Case will be debated and talked about for years to come. Long after the political and social climates that gave rise to this Case have abated; cadets, officers, politicians and parents will be discussing the Webster Smith Case.

What distinguishes this book from other books on the Case is that this book distinguishes how the Coast Guard Legal Officers and the senior Academy officers disposed of this case as opposed to other cases with similar fact patterns. This Case will serve as a witness to an era in the United States Military and its Service Academies that was ripe with cultural and ethical upheavals, proceedings with plenty of due process and little justice, sexual assaults in the military, retaliation against whistleblowers, mind blowing results, aggravation and frustration. 

The Case of Cadet Webster Smith, The Last Word

Title ID: 6293877

ISBN-13: 978-1533400802

 

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The Case of Cadet Webster Smith, The Last Word

Unrestricted Coast Guard Chronicles Vol 02 Nr 01

BY_AUTHOR Judge London Steverson

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ISBN-13: 978-1533400802

6″ x 9″ on WHITE Paper

(198 pages, Black & White)

15.24 x 22.86 cm

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Interior: The Case of Cadet Webster Smith, The Last Word – updated version edited 2- formatted15Apr11.docx

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The Case of Cadet Webster Smith, The Last Word

Title ID: 6293877

ISBN-13: 978-1533400802

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A Case Too Weak For A Court-martial

 

Cadet Alexander Stevens is a cadet at the U.S. Coast Guard Academy (USCGA). He is accused of breaking into the room of a female cadet of lower rank in Chase Hall and sexually abusing her.

On or about April 4, an anonymous person of great intellect and enormous insight left the following comment on my blob at cgachasehall.blogspot.com. I was so impressed by it that I reproduce it here without alteration or editing.

QUOTE:

This is not a case of sexual assault; the evidence presented by the government failed to prove anything more than the fact that there is a systemic problem of alcohol abuse and confusion over dorm room locations running rampant at the USCGA. Multiple witnesses confirmed the events of the night as purported by Cadet Stevens. Moreover, they confirmed that it is a too-frequent occurrence for over-intoxicated cadets to return to Chase Hall and accidentally walk into the wrong room. The alleged victim’s own roommate testified to that fact without reservation.

Doors have locks, the roommate also confirmed, but cadets are not permitted keys; only the XO has a master key to unlock doors. The only way a cadet could secure his/her room is when all occupants are safely inside. This is surely a contributor to issues of unspeakable theft, vandalism and abuse current and former cadets can tell.

The Article 32 Hearing was a manufactured event architected by someone with an agenda that goes beyond the unfortunate incident that occurred in the wee hours of September 15. Yes, Cadet Stevens was drunk and made a horrible mistake. But it was not assault and any reasonable person who looks at all of the evidence will quickly come to this conclusion. To reach any other decision is an overt decision to falsely accuse – and ruin – the character and integrity of the very same honor all cadets represent.

Admiral Stosz has issues within her ranks of leadership, character and courage; she needs to look at the culture of Chase Hall and question why cadets are abusing alcohol and questioning if the restrictive weekday rigor and lax weekend liberty — call it Feast or Famine — is modeling the lifestyle and behaviors that mold tomorrow’s Coast Guard leaders. These are far greater issues than addressing Cadet Steven’s long overdue Mast for drunkenly walking into another’s room in error.

I, for one, did not lose the irony of the drawn-out investigation culminating with a hearing that began with the start of the Coast Guard’s Sexual Prevention and Awareness Month. This is showmanship at the taxpayer’s expense, folks, and nothing more.

UNQUOTE

 

The Coast Guard prosecutor, Lt. Tyler McGill, has alleged that Cadet Stevens  was on a mission for sexual gratification that September night. The room Stevens entered was about 300 feet from his girlfriend’s room.

“Cadet Stevens did not walk into the room right next door,” McGill said.

Lt. John Cole, Cadet Stevens’ Assigned Military Defense Counsel, said the government didn’t prove sexual intent. He claims Stevens was drunk at the time and made a mental mistake.

Just because he accidentally touched the wrong cadet’s leg doesn’t mean he should go to court martial,” Cole said.

Cole argued that Stevens should face administrative punishment, which can include expulsion. Administrative punishment is not criminal in nature. Non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) is the lowest form of criminal proceeding available to the military. Above NJP there are three levels of courts-martial. They are a Summary, a Special and a General Court-matial. They differ in the maximum amount of punishment they can award to a convicted member. A court martial is a Federal Criminal Trial and can lead to prison time if the person is convicted.

The Article 32 pretrial investigation is similar to a civilian grand jury. It is used to determine wheteher there is enough evidence to refer the case to a court-martial.

A hearing in the form of an Article 32 Investigation was held  Wednesday April 2nd at the Coast Guard Academy. The Article 32 Investigating Officer (IO) has not yet made a recommendation. The IO could recommend that the case be dismissed, dealt with administratively or referred for trial by court-martial.

Usually the accused usually does not testify at an Article 32 Hearing.

Most smart Defense Counsels do not let their clients testify at an Article 32 Hearing. They use that opportunity to discover the Government’s case. They get a chance to see how much evidence the Government has and how strong it is.

Cadet Stevens, who is accused of abusive sexual contact, housebreaking and unlawful entry, did not testify.

 

The Testimony was weak.

The female complaining witness testified that a man entered her room in the middle of the night, touched her on her thigh and moved his hand up her leg before she screamed and kicked him.

“I remember someone fumbling with my blanket that was on top of me and touching my leg,” she said, describing skin-to-skin contact and the swirling motion of a hand moving up her leg. “I kicked my legs and I screamed.”

The man either fell or jumped off her bed and fled. She says she chased him and located a friend.

“I kept telling him (the friend) that’s not right,” she said, noting that she was shaking and crying.

The cadet said she found it hard to sleep and concentrate after the encounter, and her grades suffered.

“I think he should be kicked out of the Coast Guard. I think he should be a registered sex offender, and I think he should go to jail,” she said.

Cadet Stevens’ explanation Is credible and exculpatory.

Stevens said in an interview that he went into the fellow cadet’s room and touched her with his hand, said Eric Gempp, a special agent with the Coast Guard Investigative Service (CGIS). Stevens said he was startled when the cadet said, “Hey!” He quickly left the room, Stevens told investigators.

Stevens said he went into the room by mistake, believing it was his girlfriend’s room, Gempp testified.

Defense Counsel was able to get the accused’s statements into the record without him taking the witness stand.

Chief Robert Cain testified that Stevens voluntarily came to him and told him during a night of drinking he got into an argument with his girlfriend. Cain said Stevens told him after returning to his room that he decided to apologize and went to what he thought was his girlfriend’s room, tapped her on the leg and realized he was in the wrong room.

Another cadet testified that classmates often go into the wrong rooms, but said the mistake typically involves going into a room one or two doors away.

The only cadet ever court-martialed at the academy, Webster Smith, was tried in 2006 at a General Court-martial and convicted on extortion, sodomy and indecent assault charges.

 

(The Webster Smith Case was appealed all the way to the U. S. Supreme Court. It is fully documented in a book entitled “Conduct Unbecoming An Officer and a Lady” available on Amazon.com http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-Conviction/dp/1460978021 )

The Article 32 investigating officer (IO) in this case could recommend that the alleged offenses be dismissed, dealt with administratively, or referred for trial by court-martial.

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My Husband Is A Victim Of Flawed Civilian Command Policies

 A Wife Responds

When the strains of war lead to infidelity

By Rebecca Sinclair

Rebecca Sinclair is married to Brig. Gen. Jeffrey Sinclair, a former deputy commander of the 82nd Airborne Division in Afghanistan, who is being tried at Fort Bragg, N.C., on charges including adultery and sexual misconduct. 

 

Like most Americans, I’ve been unable to escape the current news cycle regarding several high-ranking military generals entangled in sex scandals. Unlike most Americans, however, for me the topic is personal. My husband, Brig. Gen. Jeffrey Sinclair, is one of the officers.

Spectators will try to make this scandal about many things: the arrogance of powerful men; conniving mistresses; the silent epidemic of sexual assault in the armed services. But these explanations obscure an underlying problem: the devastating influence of an open-ended war — now in its 11th year — on the families of U.S. service members.

Gallery

Video

<caption> Ann Telnaes cartoon: Petreaus case reveals reach of nation’s surveillance programs. </caption>

Ann Telnaes cartoon: Petreaus case reveals reach of nation’s surveillance programs.

 Let me first address the elephant in the room. My husband had an affair. He violated our marriage

vows and hurt me tremendously. Jeff and I are working on our marriage, but that’s our business.

Jeff also needs to answer to the Army. That is his business, not mine, and he accepts that. I believe in and support him as much as ever.
I wish I could say that my husband was the only officer or soldier who has been unfaithful. Since 2001, the stress of war has led many service members to engage in tremendously self-destructive behavior. The officer corps is plagued by leaders abandoning their families and forging new beginnings with other men and women. And many wives know about their husbands’ infidelity but stay silent.
For military wives, the options are bad and worse. Stay with an unfaithful husband and keep your family intact; or lose your husband, your family and the financial security that comes with a military salary, pension, health care and housing. Because we move so often, spouses lose years of career advancement. Some of us spend every other year as single parents. We are vulnerable emotionally and financially. Many stay silent out of necessity, not natural passivity.
In many ways, ours is a typical military story. Jeff and I married 27 years ago. While he rose through the officer corps, I earned my bachelor’s and master’s degrees and taught at community colleges in the places where we were stationed. We later had children.
Since 2001, the wars in Iraq and Afghanistan have destabilized our life. We have moved six times in 11 years. On average, our kids change schools every two years. Between five deployments, site surveys and training operations, Jeff has spent more than six of the past 10 years away from his family.
None of this is meant to excuse infidelity. I expected more of Jeff, and I think he expected more of himself. But we’re fooling ourselves if we don’t recognize the larger reality. My friends who are married to other combat leaders have been my anchor during this crisis. We understand that our soldiers may come home disfigured or injured in such a way that we will become lifelong caregivers. We also understand that they may not come home at all, and if blessed with a reunion, they may carry emotional baggage few could understand. My friends know that it could have been their heartbreak as much as mine. This is the only time in U.S. history that our nation has fought a decade-long war with a volunteer Army. Doing so has consequences. Nothing good can come of families being chronically separated for a decade or more.
Jeff’s case has its own complications. He was involved with a woman who confessed to a superior officer. As a servicewoman, she stood to be charged with criminal conduct under the military code of justice. She alleged sexual assault, and no such allegation should ever go unanswered. We are confident that the charges will be dropped. Hundreds of text messages and journal entries came to light in pretrial hearings last week that establish the affair was consensual. The woman in question admitted under oath that she never intended to have Jeff charged, and Jeff has passed a polygraph test. Ironically, if Jeff had decided to leave his family he would be in the clear.
There are many accusations against Jeff, some of which have already fallen apart. Jeff has been charged with possessing alcohol in a combat zone; a visiting dignitary gave him a bottle of Scotch that remained unopened on a bookshelf. 
 His personal computer was used to access pornography; time stamps and Army records show that he was out of the country or city when most of the files were downloaded. We expect those charges, too, to be dismissed.
But the damage has been done. It will take years for Jeff to shed the false image of a hard-drinking, porn-dependent aggressor. The other generals will also struggle to rehabilitate reputations they spent decades building. All of these men are human beings, with strengths and fallibilities, and they have families who are under real strain. How we address this strain will say much about what kind of country we are; it will also determine how stable and strong our military is.
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Travesty? Mockery? Justice? Was It Worth It?

 (Brig Gen. Jeff Sinclair as he arrives to the Fort Bragg courthouse, for his sentencing hearing, Wednesday, March 19, 2014, in Fort Bragg, N.C. Sinclair, who was accused of sexually assaulting a subordinate, plead guilty to lesser charges in a plea deal reached with government prosecutors.)

Disgraced Army general, Jeffrey A. Sinclair, gets $20,000 fine, no jail time.

 (FORT BRAGG, NC – MARCH 17: Brig. Gen. Jeffrey Sinclair leaves the Fort Bragg Courthouse after sexual assault charges against him were dropped after he plead to lesser charges March 17, 2014 in Fort Bragg, North Carolina. Sinclair, a former deputy commander with the 82nd Airborne Division, has admitted to an extramarital affair with a junior officer. “Unlawful command influence” caused a delay in the trial last week.) (Photo by Davis Turner/Getty Images)

 

Army Brig. Gen. Jeffrey Sinclair carried on a three-year affair with a captain and had two other inappropriate relationships with subordinates. He was reprimanded and fined $20,000 in pay. He will not serve any jail time.

 

 Coast Guard Academy Cadet Webster Smith had consensual sex with a confidant and girl friend; he received six months jail time and a bad conduct discharge. Is it fair? Is that what we call “equal protection of the law”? It was an American Tragedy. It was a mockery of justice. It was a case that will live in infamy. It was a travesty!

(Read all about The Webster Smith Case at http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-Conviction/dp/1460978021/ref=la_B006WQKFJM_1_1?s=books&amp;ie=UTF8&amp;qid=1395709342&amp;sr=1-1)

Admiral Thad W. Allen, Commandant of the Coast Guard, speaking at the Academy on 8 September 2006 did not mention the Webster Smith Case. But, talking with reporters afterward, Allen said THE PROCESS used to deal with the issue worked as it should.

Apparently, Commandant Allen did not know that the System was stalled. He did not seem to be aware that his fellow Admiral, the Superintendent, was stonewalling the System.

(Read more at http://cgachasehall.blogspot.com/2006/10/admiral-van-sice-has-no-respect-for.html)

 

 

 

 

 Army Brig. Gen. Jeffrey Sinclair admitted carrying on a prolonged, turbulent affair with an officer under his direct command and having improper relationships with two other women was reprimanded and fined $20,000 by a military judge Thursday March 20th.
To his visible relief, however, Brig. Gen. Jeffrey A. Sinclair was spared a jail sentence. The decorated combat veteran hugged his lawyers and friends after his sentence was imposed by Col. James Pohl, the military judge who oversaw his court-martial at Fort Bragg, N.C.

 

The system worked. I’ve always been proud of my Army,” Sinclair told reporters. “All I want to do now is go north and hug my kids and wife.”

 

 

Yes, the System worked. That sounds awfully like what Admiral Thad Allen said about the court-martial of Cadet Webster Smith when he was interviewed at the United states Coast Guard Academy after the first court-martial of a cadet in Coast Guard history.
The big question is “for whom’? For whom did the System work? It works a lot better for some than for others.
The Defense Department’s failure so far to change the military’s male-dominated culture is driving a vocal group of mainly female lawmakers led by Sen. Kirsten Gillibrand, D-N.Y., to advocate aggressive reforms.

(Senator Kirsten Gilllibrand, D-N.Y.)
Tinkering at the edges, they argue, won’t produce the seismic shift needed to send the message that sexist attitudes and behaviors will no longer be tolerated. Victims need to be confident that if they report a crime their allegations won’t be discounted and they won’t face retaliation.

For two years, Sinclair’s court-martial had made him the public face of the military’s struggle to prevent and police sexual misconduct in the ranks. He was only the third Army general to face court-martial in 60 years, a measure that critics called emblematic of the military’s reluctance to hold senior commanders accountable for all kinds of wrongdoing.
Although Sinclair was pleased with the outcome, his chief accuser and some advocacy groups for sex-crime victims expressed deep disappointment. Rep. Jackie Speier (D-Calif.) called the sentence “a mockery of military justice” and a “laughable punishment.
Sinclair was originally charged with crimes that could have landed him in prison for life.
His accuser, a much younger female captain who served on his staffs in Iraq and Afghanistan, reported in March 2012 that she had been the married general’s lover for three years. She also said that he had sexually assaulted her on two occasions and once threatened to kill her and her family if she told anyone about the affair.
The Army prosecuted Sinclair for those offenses for nearly two years, but suddenly dropped the charges this month and cut a plea deal with the general after prosecutors admitted they had doubts about the reliability of the general’s mistress. Their hand was also forced after the judge ruled that there was evidence the Army had allowed politics and external considerations to influence its handling of the case.
In the end, Sinclair pleaded guilty to adultery, maltreatment of his accuser and two other improper relationships. He also admitted to making derogatory comments about women and, when challenged by his staff, replying: “I’m a general, I’ll say whatever the [expletive] I want.”
The accuser’s attorney, Jamie Barnett, a retired Navy rear admiral, said she was “obviously devastated” that Sinclair’s sentence wasn’t more severe.
“It’s a terrible outcome, and by failing to render justice today, the Army’s going to face the reality that this could happen again,” said Barnett, now a lawyer in private practice. “It’s really beyond disappointing. It’s a travesty for the Army and military justice in general.”

Coincidentally, Sinclair was sentenced on the same day that another high-profile sexual assault prosecution in the military collapsed.
In that case, a military judge at the Washington Navy Yard found a former Navy football player not guilty of sexually assaulting a female classmate at an April 2012 party. The Navy had originally charged two other midshipmen in the same incident but later cleared both as the case slowly crumbled.
In the past, military leaders have been criticized for not taking sex abuse allegations seriously and for mistreating victims. But in the courts-martial that culminated Thursday, the evidence of sexual assault rested largely on the testimony of the accusers, both of whom struggled to give a consistent and clear account.
Advocacy groups for sexual-assault victims were quick to seize on the outcomes as another sign that the military justice system is ill-equipped to handle such cases.
Nancy Parrish, the president of Protect our Defenders, said the results would discourage other members of the military from coming forward to report sex crimes.
“The military’s promises of ‘zero tolerance’ for sexual offenses continues to ring hollow as yet another high ranking official is let off the hook,” she said of the Sinclair case. “It has been long known within the military that General Sinclair conducted himself in outrageous and inappropriate, even unlawful ways. His behavior was not addressed until this victim came forward.”
Sinclair’s attorney, Richard Scheff, retorted that people who thought the general got away with a light sentence were ignoring the facts. “Critics of this ruling who weren’t in court and haven’t seen the evidence have no idea what they’re talking about.”
Sinclair admitted the affair but vigorously denied assaulting or threatening the woman. His lawyers portrayed her as a jealous mistress who spoke out after she read suggestive e-mails he had sent to other women, and because he refused to divorce his wife.
He could be punished further financially. His attorneys have said they expect he will have to retire from the Army at a lower rank, which would diminish his pension benefits.
Rear Adm. John Kirby, the Pentagon’s chief spokesman, declined to comment on Sinclair’s sentence. But he acknowledged that the military needed to do more to deter and prosecute sex crimes.
We know we need to get better. We know that there are changes that need to continue to be made,” Kirby told reporters. “Our focus is on making sure victims have the confidence to report and that those who are proven guilty of a crime are held accountable.”

(By Craig Whitlock. Ernesto Londoño contributed.)

APPENDIX I. Background on the handling of this case.

FORT BRAGG, N.C. — It was an illicit and volatile love affair that spanned two war zones and four countries. The married general couldn’t stay away from a captain on his staff. She fell hard for her boss and called him “Poppa Panda Sexy Pants.” The three-year entanglement ended disastrously for both, at a time that could not be worse for the Army.
All the raw and sordid details are spilling out in an austere military courthouse here, where the Army is girding — for only the third time in half a century — to court-martial one of its generals.

(Uncredited/AP) – Brig. Gen. Jeffrey A. Sinclair faces court martial on charges that include forcible sodomy and adultery.

Video

<caption> Brigadier General Jeffrey Sinclair is accused of sexually assaulting a female captain and inappropriately communicating with three others. </caption>

Brigadier General Jeffrey Sinclair is accused of sexually assaulting a female captain and inappropriately communicating with three others.

 

Brig. Gen. Jeffrey A. Sinclair, an Army Ranger and paratrooper, stands accused of forcible sodomy, adultery and other charges that could land him in prison. Prosecutors say he abused his command authority by sleeping with a subordinate officer, a taboo in the armed forces and a violation of military law.
They charge that the relationship turned violent on two occasions, when he allegedly forced her to perform oral sex.
In addition, Sinclair faces charges that he had inappropriate communications with three other female officers.
Sinclair has pleaded not guilty to all charges. Besides the rare spectacle of a general in the dock, however, the case poses a critical test of how the U.S. military handles allegations of sexual assault and misconduct, crimes that have long bedeviled the armed forces.
Congress and President Obama have demanded a crackdown, alarmed by a recent string of scandals and frank admissions by military leaders that they have systematically failed to address the problem.
A growing faction of lawmakers is pushing to rewrite the underpinnings of military law by giving power to uniformed prosecutors, instead of commanders, to oversee investigations of sexual abuse and other serious crimes. The Pentagon is resisting, arguing that commanders must retain the authority to enforce order and discipline in their units.
The last Army general to face court-martial was Brig. Gen. Roger B. Duff, who pleaded guilty in June 2012 to making false official statements and wearing unauthorized decorations. The Army did not publicly disclose that Duff had been court-martialed until months later, when Sinclair was charged.
In 1999, Maj. Gen. David R.E. Hale pleaded guilty at court-
martial after he was accused of committing adultery with the wives of four subordinates. He was fined and demoted. Before that, no Army general had faced court-martial since 1952, when Maj. Gen. Robert W. Grow, a military attache in Moscow, was suspended and reprimanded on charges of dereliction of duty.
Given the intense debate in Congress over possible far-reaching changes to military law, all sides are intently watching how Sinclair’s court-martial plays out. It is scheduled to begin Sept. 30 after months of evidentiary hearings and pretrial wranglings that have foreshadowed what is at stake.
Last week, the Army finished selecting a jury of five major generals, all men, who will determine Sinclair’s fate. Under military law, each juror must be senior in rank to the defendant. More than 40 generals were summoned to Fort Bragg from around the world to be interviewed. Most were rejected because they knew Sinclair or other key potential witnesses.
During jury selection, lawyers for both sides acknowledged the heavy political pressures swirling around the case.
They asked the potential jurors if they were worried that they might be passed over for promotion if they reached an unpopular verdict. They also questioned whether the generals could resist outside influences, such as Obama’s angry comments in May, when he demanded that military sex abusers be “prosecuted, stripped out of their positions, court-martialed, fired, dishonorably discharged — period.”
Virtually all the generals said that sexual assault is a serious problem in the ranks and that they had previously heard about the charges against Sinclair. One revealed that he had attended an Army-mandated training session on sexual assault prevention in which Sinclair was depicted as a case study in bad behavior.
Another commander, Maj. Gen. Kendall W. Penn of the 1st Army, candidly recalled what he thought when he first read news accounts of the case. “My general reaction was, this is going to be a black eye on the Army,” he said. He was later culled from the jury pool.
Retired Maj. Gen. Charles J. Dunlap Jr., a Duke University law professor and a former deputy judge advocate general for the Air Force, said the atmosphere surrounding sexual assault cases in the military has become “hyper-politicized.”
He said that Sinclair could receive a fair trial but that the five jurors will have to “exercise moral courage in a way they’ve perhaps never been asked to do before in a military justice setting.”

Final straw
Although Sinclair has pleaded not guilty, his attorneys acknowledge that he carried on an affair with a subordinate officer 17 years his junior. The Washington Post generally does not name alleged sex-crime victims.
During a pretrial hearing last year, the woman testified that the pair had sex in the general’s quarters in Iraq, in her car in a German parking lot, in plain sight on a hotel balcony in Arizona and in her cramped office in Afghanistan, among other places. Some soldiers wondered and snickered about their relationship, but nobody reported it.
The depth of their passion might have remained hidden if the general and the captain hadn’t bombarded each other with explicit text messages. Defense attorneys have read many out loud in court.
“You are my heart and world you beautiful magnificent man,” the captain texted the general in September 2011, during one of their tamer exchanges. “I need you and I mean really deeply profusely need you.”
Many of the text messages betray a dark side to the affair — angry accusations from the unmarried captain, as well as threats to kill herself or expose the affair to Sinclair’s superiors. During an evidentiary hearing at Fort Bragg, she testified that they fought continually but usually made up afterward.
“You are going to make me do something really stupid,” she wrote early last year in a typo-filled text. “How about I just [expletive] call [Sinclair’s commander] and have him resolve this, Im sure he will take the time to keep me from being suicidal. I well not let yoy continue to screw me over.”
The final straw came in Kandahar, Afghanistan, in March 2012. The captain was snooping through Sinclair’s e-mail in his office and discovered tender messages to his wife, as well as love notes to another female Army officer.
“I felt so stupid,” the captain testified. “I finally had something to slap me in the face and say, ‘See, he never loved you. He was just using you for sex.’ ”
By her own admission, she flew into a jealous rage. First, she fired off an e-mail to the other female officer, saying, “I hope you don’t think you’re the only girl that he’s sleeping with.”
Later that night, she burst into the office of Maj. Gen. James L. Huggins, then the commander of the 82nd Airborne Division and leader of all U.S. forces in southern Afghanistan. Tears streaming down her face, she spent two hours confessing to the affair, according to court testimony.
That set off a flurry of phone calls and e-mails among senior Army brass, who were stunned but immediately ordered a full investigation that eventually roped in more than 100 witnesses.
The case grew more serious when the captain gave a formal statement accusing Sinclair of sexual assault by forcing her to perform oral sex against her will on two occasions in Afghanistan.
She also asserted that he had once vowed to kill her and harm her family if she ever told his wife about the affair. Sinclair’s attorneys deny that he made the threat.

‘It’s tearing me up’
The Army charged Sinclair with forcible sodomy because of the oral sex allegations. The captain testified that the assaults occurred between December 2011 and February 2012 but said she cannot recall the exact dates.
During an evidentiary hearing in November, she said that she still had feelings for Sinclair and that she had not wanted the Army to charge him with forcible sodomy or a violent crime.
“It’s tearing me up, and in a [expletive] way I still love him, and I don’t want him to be upset with me,” she said. “I know it’s very messed up, but there’s a part of me that wants to believe that he really did love me and that I just misinterpreted his actions.”
Defense attorneys have accused her of making up the assault allegations to save her Army career. They said she first told one confidant that the relationship was entirely consensual but gave investigators a different version after she realized that she, too, could be kicked out of the Army for adultery.
Richard L. Scheff, an attorney for Sinclair, noted that the woman has since been granted immunity by the prosecution. “The evidence in this case is paper-thin,” he said. The captain, he said, has “changed her story again and again.”
Legal representatives for the woman did not respond to a request for comment placed through Army public affairs officials at Fort Bragg.
In an unusual move in the button-down world of military justice, Sinclair has hired four civilian defense lawyers and a national public relations firm, MWW Group. They have created a Web site — sinclairinnocence.com — to dissect the case and challenge the Army.
In an interview, Scheff said the Army “grossly overcharged” his client. Given Washington’s marching orders to the military to get tough on sexual assault, he said, he doubts that any jury could render a fair verdict for Sinclair.
“They’re in the spotlight on this,” he said. “They’re under such enormous pressure to change the culture on sexual assault.”
A Fort Bragg spokeswoman said prosecutors are not permitted to comment on a pending case.

‘It’s draining’
Sinclair also is charged with having inappropriate relations with three other female junior officers.
In combing through his e-mails, investigators found nude photos and flirtatious messages from two of the women but no evidence that he had sex with them. One of those officers testified that she repeatedly avoided meeting him in person, however, because she assumed he wanted to have a tryst.
At the same time, each of the three female officers testified that they admired Sinclair, considered him a mentor and didn’t want to cut off contact. Instead, they frequently sought out the general for career advice and professional favors.
In November, Sinclair’s wife, Rebecca, stunned many in the Army when she wrote an op-ed column in The Washington Post to declare that she was sticking by her husband and that she blamed his infidelity on “the stress of war.”
In an interview this month, Rebecca Sinclair said her husband may be a cheater but not a violent abuser. “I don’t excuse my husband’s bad behavior or bad judgment,” she said. “I never said it’s okay. I said I understand how it could happen.”
Although she has not attended most of the court proceedings, she said she’s still living with the general. “We’re doing the best we can,” she said. “It’s draining.”
 

APPENDIX II  

A Wife Responds

Why I Stand By My Man

When the strains of war lead to infidelity

By Rebecca Sinclair, Published: November 15, 2012

 

 

Rebecca Sinclair is married to Brig. Gen. Jeffrey Sinclair, a former deputy commander of the 82nd Airborne Division in Afghanistan, who is being tried at Fort Bragg, N.C., on charges including adultery and sexual misconduct.

Like most Americans, I’ve been unable to escape the current news cycle regarding several high-ranking military generals entangled in sex scandals. Unlike most Americans, however, for me the topic is personal. My husband, Brig. Gen. Jeffrey Sinclair, is one of the officers.
Spectators will try to make this scandal about many things: the arrogance of powerful men; conniving mistresses; the silent epidemic of sexual assault in the armed services. But these explanations obscure an underlying problem: the devastating influence of an open-ended war — now in its 11th year — on the families of U.S. service members.

 

Gallery

Video

<caption> Ann Telnaes cartoon: Petreaus case reveals reach of nation’s surveillance programs. </caption>

Ann Telnaes cartoon: Petreaus case reveals reach of nation’s surveillance programs.

 

 

 

Let me first address the elephant in the room. My husband had an affair. He violated our marriage vows and hurt me tremendously. Jeff and I are working on our marriage, but that’s our business.
Jeff also needs to answer to the Army. That is his business, not mine, and he accepts that. I believe in and support him as much as ever.
I wish I could say that my husband was the only officer or soldier who has been unfaithful. Since 2001, the stress of war has led many service members to engage in tremendously self-destructive behavior. The officer corps is plagued by leaders abandoning their families and forging new beginnings with other men and women. And many wives know about their husbands’ infidelity but stay silent.
For military wives, the options are bad and worse. Stay with an unfaithful husband and keep your family intact; or lose your husband, your family and the financial security that comes with a military salary, pension, health care and housing. Because we move so often, spouses lose years of career advancement. Some of us spend every other year as single parents. We are vulnerable emotionally and financially. Many stay silent out of necessity, not natural passivity.
In many ways, ours is a typical military story. Jeff and I married 27 years ago. While he rose through the officer corps, I earned my bachelor’s and master’s degrees and taught at community colleges in the places where we were stationed. We later had children.
Since 2001, the wars in Iraq and Afghanistan have destabilized our life. We have moved six times in 11 years. On average, our kids change schools every two years. Between five deployments, site surveys and training operations, Jeff has spent more than six of the past 10 years away from his family.
None of this is meant to excuse infidelity. I expected more of Jeff, and I think he expected more of himself. But we’re fooling ourselves if we don’t recognize the larger reality. My friends who are married to other combat leaders have been my anchor during this crisis. We understand that our soldiers may come home disfigured or injured in such a way that we will become lifelong caregivers. We also understand that they may not come home at all, and if blessed with a reunion, they may carry emotional baggage few could understand. My friends know that it could have been their heartbreak as much as mine. This is the only time in U.S. history that our nation has fought a decade-long war with a volunteer Army. Doing so has consequences. Nothing good can come of families being chronically separated for a decade or more.
Jeff’s case has its own complications. He was involved with a woman who confessed to a superior officer. As a servicewoman, she stood to be charged with criminal conduct under the military code of justice. She alleged sexual assault, and no such allegation should ever go unanswered. We are confident that the charges will be dropped. Hundreds of text messages and journal entries came to light in pretrial hearings last week that establish the affair was consensual. The woman in question admitted under oath that she never intended to have Jeff charged, and Jeff has passed a polygraph test. Ironically, if Jeff had decided to leave his family he would be in the clear.
There are many accusations against Jeff, some of which have already fallen apart. Jeff has been charged with possessing alcohol in a combat zone; a visiting dignitary gave him a bottle of Scotch that remained unopened on a bookshelf. His personal computer was used to access pornography; time stamps and Army records show that he was out of the country or city when most of the files were downloaded. We expect those charges, too, to be dismissed.
But the damage has been done. It will take years for Jeff to shed the false image of a hard-drinking, porn-dependent aggressor. The other generals will also struggle to rehabilitate reputations they spent decades building. All of these men are human beings, with strengths and fallibilities, and they have families who are under real strain. How we address this strain will say much about what kind of country we are; it will also determine how stable and strong our military is.

 

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More Coast Guard Cadets Under Investigation For Sexual Misconduct

New London — A cadet at the U.S. Coast Guard Academy (USCGA) is accused of breaking into a dorm room and sexually abusing another cadet.

An Academy spokesman said the alleged incident occurred in mid-September in the Chase Hall barracks.

The accused cadet is suspected of violating Articles 120, 130 and 134 of the Uniform Code of Military Justice (UCMJ), the military’s criminal code, which prohibit abusive sexual contact, housebreaking and unlawful entry. The charges were preferred, or formally initiated, and then served to the accused on Monday, February 3, 2014. (See below for specific elements of the offenses.)

A military attorney, or judge advocate general, will now conduct an Article 32 investigation to determine whether there is enough evidence to warrant a court-martial.

The Academy would not identify the gender of either cadet involved. Capt. Eric C. Jones, the academy’s assistant superintendent, said that while Article 120 includes rape, in this case, “the alleged offense is not rape.”

The academy is sending the accused off campus to work at another Coast Guard unit while the process moves forward, Jones said in an interview Tuesday, February 4. The alleged victim is taking classes and using the support services on campus.

Rear Adm. Sandra L. Stosz, the academy superintendent, decided to proceed with the Article 32 investigation, Jones said.

This type of investigation has often been compared to grand jury proceedings in the civilian judicial system since both are concerned with determining whether there is sufficient probable cause to believe a crime was committed and whether the person accused of the crime committed it. The military investigation, however, is broader in scope and more protective of the accused.

Jones did not release the names of the cadets or many details about the alleged incident, citing the fact that the investigation is ongoing. The Coast Guard Investigative Service (CGIS) conducted the initial investigation.

Jones added that the Academy is concerned with protecting the rights of the victim and the accused and ensuring the legal process is fair.

“I ask everyone to be patient and not to engage in supposition and rumors,” he said. “As soon as it gets to the point where it’s appropriate to release information directly to the public about the case, we’ll be ready to do that.” An Article 32 hearing is a public hearing.

The only cadet ever court-martialed at the Coast Guard Academy was tried on sexual assault charges in 2006. Webster M. Smith was convicted on extortion, sodomy and indecent-assault charges and acquitted of rape.

(The Webster Smith Case was appealed all the way to the U. S. Supreme Court. It is fully documented in a book entitled “Conduct Unbecoming An Officer and a Lady” available on Amazon.com http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-Conviction/dp/1460978021 )

The Article 32 investigating officer (IO) in this case could recommend that the alleged offenses be dismissed, dealt with administratively, or referred for trial by court-martial. Stosz, as the convening authority, will decide which path to take.

Jones said he is hoping for a decision within one to three months, but there are legal processes that could extend that timeline. (By Jennifer McDermott)

j.mcdermott@theday.com

(CGA cadet accused of sexually abusing another cadet,McDermott J.,The Day, Military News, Feb 05, 2014) 

(ADDITIONAL EXPLANATORY INFORMATION)

Note: As part of the FY 2006 Military Authorization Act, Congress amended Article 120 of the Uniform Code of Military Justice (UCMJ), effective for offenses occurring on and after October 1, 2007. Article 120 was formerly known as “Rape and carnal knowledge,” but is now entitled “Rape, sexual assault, and other sexual misconduct.”

The new Article 120 creates 36 offenses. These 36 offenses replace those offenses under the former Article 120 and others that used to be MCM offenses under Article 134 (the “General” Article).

The new Article 120 replaces the following Article 134 offenses:

The UCMJ change also amends two Article 134 offenses:

(1) Indecent language communicated to another – other than when communicated in the presence of a child – remains punishable under Article 134. If the language was communicated in the presence of a child, then it is an Article 120 offense.

(2) Pandering (having someone commit an act of prostitution) is still an offense under Article 134, but if the pandering is “compelled,” it becomes an Article 120 offense.

ELEMENTS OF THE OFFENSE

Rape

By using force: That the accused caused another person, who is of any age, to engage in a sexual act by using force against that other person.

By causing grievous bodily harm: That the accused caused another person, who is of any age, to engage in a sexual act by causing grievous bodily harm to any person.

By using threats or placing in fear: That the accused caused another person, who is of any age, to engage in a sexual act by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.

By rendering another unconscious: That the accused caused another person, who is of any age, to engage in a sexual act by rendering that other person unconscious.

By administration of drug, intoxicant, or other similar substance:

      (i) That the accused caused another person, who is of any age, to engage in a sexual act by administering to that other person a drug, intoxicant, or other similar substance;
      (ii) That the accused administered the drug, intoxicant or other similar substance by force or threat of force or without the knowledge or permission of that other person; and
      (iii) That, as a result, that other person’s ability to appraise or control conduct was substantially impaired.

Aggravated sexual assault

By using threats or placing in fear:

      (i) That the accused caused another person, who is of any age, to engage in a sexual act; and
    (ii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to bodily harm or other harm (other than by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping).

By causing bodily harm:

      (i) That the accused caused another person, who is of any age, to engage in a sexual act; and
    (ii) That the accused did so by causing bodily harm to another person.

Upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness:

      (i) That the accused engaged in a sexual act with another person, who is of any age; and (Note: add one of the following elements)
      (ii) That the other person was substantially incapacitated;
      (iii) That the other person was substantially incapable of appraising the nature of the sexual act;
      (iv) That the other person was substantially incapable of declining participation in the sexual act; or
      (v) That the other person was substantially incapable of communicating unwillingness to engage in the sexual act.

Aggravated sexual contact

By using force:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by using force against that other person.

By causing grievous bodily harm:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by causing grievous bodily harm to any person.

By using threats or placing in fear:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.

By rendering another unconscious:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by rendering that other person unconscious.

By administration of drug, intoxicant, or other similar substance:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
      (iii) (a) That the accused did so by administering to that other person a drug, intoxicant, or other similar substance;
      (b) That the accused administered the drug, intoxicant, or other similar substance by force or threat of force or without the knowledge or permission of that other person; and
      (c) That, as a result, that other person’s ability to appraise or control conduct was substantially impaired.

Abusive sexual contact

By using threats or placing in fear:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to bodily harm or other harm (other than by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping).

By causing bodily harm:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by causing bodily harm to another person.
      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and (Note: add one of the following elements)
      (iii) That the other person was substantially incapacitated;
      (iv) That the other person was substantially incapable of appraising the nature of the sexual contact;
      (v) That the other person was substantially incapable of declining participation in the sexual contact; or
      (vi) That the other person was substantially incapable of communicating unwillingness to engage in the sexual contact.

Wrongful sexual contact

      (a) That the accused had sexual contact with another person;
      (b) That the accused did so without that other person’s permission; and
      (c) That the accused had no legal justification or lawful authorization for that sexual contact.

Upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness:

Indecent act

      (a) That the accused engaged in certain conduct; and
    (b) That the conduct was indecent conduct.

Indecent exposure

      (a) That the accused exposed his or her genitalia, anus, buttocks, or female areola or nipple;
      (b) That the accused’s exposure was in an indecent manner;
      (c) That the exposure occurred in a place where the conduct involved could reasonably be expected to be viewed by people other than the accused’s family or household; and
    (d) That the exposure was intentional.

Aggravated sexual abuse of a child

      (a) That the accused engaged in a lewd act; and
    (b) That the act was committed with a child who has not attained the age of 16 years.

Forcible pandering

      (a) That the accused compelled a certain person to engage in an act of prostitution; and
    (b) That the accused directed another person to said person, who then engaged in an act of prostitution.

Note: If the act of prostitution was not compelled, but “the accused induced, enticed, or procured a certain person to engage in an act of sexual intercourse for hire and reward with a person to be directed to said person by the accused,” see Article 134.

DEFINITIONS

Sexual act. The term ‘sexual act’ means —

(A) contact between the penis and the vulva, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or

(B) the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

Sexual contact. The term ‘sexual contact’ means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.

Grievous bodily harm. The term ‘grievous bodily harm’ means serious bodily injury. It includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries. It does not include minor injuries such as a black eye or a bloody nose. It is the same level of injury as in Article 128, and a lesser degree of injury than in section 2246(4) of title 18.

Dangerous weapon or object. The term ‘dangerous weapon or object’ means —

(A) any firearm, loaded or not, and whether operable or not;

(B) any other weapon, device, instrument, material, or substance, whether animate or inanimate, that in the manner it is used, or is intended to be used, is known to be capable of producing death or grievous bodily harm; or

(C) any object fashioned or utilized in such a manner as to lead the victim under the circumstances to reasonably believe it to be capable of producing death or grievous bodily harm.

Force. The term ‘force’ means action to compel submission of another or to overcome or prevent another’s resistance by —

(A) the use or display of a dangerous weapon or object;

(B) the suggestion of possession of a dangerous weapon or object that is used in a manner to cause another to believe it is a dangerous weapon or object; or

(C) physical violence, strength, power, or restraint applied to another person, sufficient that the other person could not avoid or escape the sexual conduct.

Threatening or placing that other person in fear.The term ‘threatening or placing that other person in fear’ for the charge of ‘rape’ or the charge of ‘aggravated sexual contact’ means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to death, grievous bodily harm, or kidnapping.

Threatening or placing that other person in fear. In general. The term ‘threatening or placing that other person in fear’ for the charge of ‘aggravated sexual assault, or the charge of ‘abusive sexual contact’ means a communication or action that is of sufficient consequence to cause a reasonable fear that noncompliance will result in the victim or another being subjected to a lesser degree of harm than death, grievous bodily harm, or kidnapping.

Inclusions. Such lesser degree of harm includes —

      (i) physical injury to another person or to another person’s property; or
      (ii) a threat —
      (I) to accuse any person of a crime;
      (II) to expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or
    (III) through the use or abuse of military position, rank, or authority, to affect or threaten to affect, either positively or negatively, the military career of some person.

Bodily harm. The term ‘bodily harm’ means any offensive touching of another, however slight.

Child. The term ‘child’ means any person who has not attained the age of 16 years.

Lewd act. The term ‘lewd act’ means —

(A) the intentional touching, not through the clothing, of the genitalia of another person, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; or

(B) intentionally causing another person to touch, not through the clothing, the genitalia of any person with an intent to abuse, humiliate or degrade any person, or to arouse or gratify the sexual desire of any person.

Indecent liberty. The term ‘indecent liberty’ means indecent conduct, but physical contact is not required. It includes one who with the requisite intent exposes one’s genitalia, anus, buttocks, or female areola or nipple to a child. An indecent liberty may consist of communication of indecent language as long as the communication is made in the physical presence of the child. If words designed to excite sexual desire are spoken to a child, or a child is exposed to or involved in sexual conduct, it is an indecent liberty; the child’s consent is not relevant.

Indecent conduct. The term ‘indecent conduct’ means that form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations. Indecent conduct includes observing, or making a videotape, photograph, motion picture, print, negative, slide, or other mechanically, electronically, or chemically reproduced visual material, without another person’s consent, and contrary to that other person’s reasonable expectation of privacy, of —

(A) that other person’s genitalia, anus, or buttocks, or (if that other person is female) that person’s areola or nipple; or

(B) that other person while that other person is engaged in a sexual act, sodomy (under Article 125 ), or sexual contact.

Act of prostitution. The term ‘act of prostitution’ means a sexual act, sexual contact, or lewd act for the purpose of receiving money or other compensation.

Consent. The term ‘consent’ means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the accused’s use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating relationship by itself or the manner of dress of the person involved with the accused in the sexual conduct at issue shall not constitute consent. A person cannot consent to sexual activity if —

(A) under 16 years of age; or

(B) substantially incapable of —

(i) appraising the nature of the sexual conduct at issue due to —

(I) mental impairment or unconsciousness resulting from consumption of alcohol, drugs, a similar substance, or otherwise; or

(II) mental disease or defect which renders the person unable to understand the nature of the sexual conduct at issue;

(ii) physically declining participation in the sexual conduct at issue; or

(iii) physically communicating unwillingness to engage in the sexual conduct at issue.

Mistake of fact as to consent. The term ‘mistake of fact as to consent’ means the accused held, as a result of ignorance or mistake, an incorrect belief that the other person engaging in the sexual conduct consented. The ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. To be reasonable the ignorance or mistake must have been based on information, or lack of it, which would indicate to a reasonable person that the other person consented. Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts. Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar circumstances. The accused’s state of intoxication, if any, at the time of the offense is not relevant to mistake of fact. A mistaken belief that the other person consented must be that which a reasonably careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense.

MAXIMUM PUNISHMENTS

Rape and Rape of a Child: Dishonorable Discharge, death or confinement for Life, and forfeiture of all pay and allowances.

Aggravated Sexual Assault: Dishonorable Discharge, confinement for 30 yrs, and forfeiture of all pay and allowances.

Aggravated Sexual Assault of a Child: Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.

Aggravated Sexual Abuse of a Child: Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.

Aggravated Sexual Contact:Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.

Aggravated Sexual Contact with a Child: Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.

Abusive Sexual Contact with a Child:Dishonorable Discharge, confinement for 15 yrs, and forfeiture of all pay and allowances.

Indecent Liberty with a Child: Dishonorable Discharge, confinement for 15 yrs, and forfeiture of all pay and allowances.

Abusive Sexual Contact: Dishonorable Discharge, confinement for 7 yrs, and forfeiture of all pay and allowances.

Indecent Act: Dishonorable Discharge, confinement for 5 yrs, and forfeiture of all pay and allowances.

Forcible Pandering:Dishonorable Discharge, confinement for 5 yrs, and forfeiture of all pay and allowances.

Wrongful Sexual Contact:Dishonorable Discharge, confinement for 1 yr, and forfeiture of all pay and allowances.

Indecent Exposure: Dishonorable Discharge, confinement for 1 yr, and forfeiture of all pay and allowances.

Article 130—Housebreaking

Text.

“Any person subject to this chapter who unlawfully enters the building or structure of another with intent to commit a criminal offense therein is guilty of housebreaking and shall be punished as a court-martial may direct.”

Elements.

(1) That the accused unlawfully entered a certain building or structure of a certain other person; and

(2) That the unlawful entry was made with the intent to commit a criminal offense therein.

Explanation.

(1) Scope of offense. The offense of housebreaking is broader than burglary in that the place entered is not required to be a dwelling house; it is not necessary that the place be occupied; it is not essential that there be a breaking; the entry may be either in the night or in the daytime; and the intent need not be to commit one of the offenses made punishable under Articles 118 through 128.

(2) Intent. The intent to commit some criminal offense is an essential element of housebreaking and must be alleged and proved to support a conviction of this offense. If, after the entry the accused committed a criminal offense inside the building or structure, it may be inferred that the accused in-tended to commit that offense at the time of the entry.

(3) Criminal offense. Any act or omission which is punishable by courts-martial, except an act or omission constituting a purely military offense, is a “criminal offense.”

(4) Building, structure. “Building” includes a room, shop, store, office, or apartment in a building. “Structure” refers only to those structures which are in the nature of a building or dwelling. Examples of these structures are a stateroom, hold, or other compartment of a vessel, an inhabitable trailer, an in-closed truck or freight car, a tent, and a houseboat. It is not necessary that the building or structure be in use at the time of the entry.

(5) Entry. See paragraph 55c(3).

(6) Separate offense. If the evidence warrants, the intended offense in the housebreaking specification may be separately charged.

Lesser included offenses.

(1) Article 134—unlawful entry

(2) Article 80—attempts

Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

UCMJ Article 134—General article

“Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.”

Elements.

The proof required for conviction of an offense under Article 134 depends upon the nature of the misconduct charged. If the conduct is punished as a crime or offense not capital, the proof must establish every element of the crime or offense as required by the applicable law. If the conduct is punished as a disorder or neglect to the prejudice of good order and discipline in the armed forces, or of a nature to bring discredit upon the armed forces, then the following proof is required:

    (1) That the accused did or failed to do certain acts; and
    (2) That, under the circumstances, the accused’s conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Explanation.

(1) In general. Article 134 makes punishable acts in three categories of offenses not specifically covered in any other article of the code. These are referred to as “clauses 1, 2, and 3” of Article 134. Clause 1 offenses involve disorders and neglects to the prejudice of good order and discipline in the armed forces. Clause 2 offenses involve conduct of a nature to bring discredit upon the armed forces. Clause 3 offenses involve noncapital crimes or offenses which violate Federal law including law made applicable through the Federal Assimilative Crimes Act, see subsection (4) below. If any conduct of this nature is specifically made punishable by another article of the code, it must be charged as a violation of that article. See subparagraph (5)(a) below. How-ever, see paragraph 59c for offenses committed by commissioned officers, cadets, and midshipmen.

(2) Disorders and neglects to the prejudice of good order and discipline in the armed forces (clause 1).

      (a)

To the prejudice of good order and discipline

      . “To the prejudice of good order and discipline” refers only to acts directly prejudicial to good order and discipline and not to acts which are preju dicial only in a remote or indirect sense. Almost any irregular or improper act on the part of a member of the military service could be regarded as prejudicial in some indirect or remote sense; however, this article does not include these distant effects. It is con-fined to cases in which the prejudice is reasonably direct and palpable. An act in violation of a local civil law or of a foreign law may be punished if it constitutes a disorder or neglect to the prejudice of good order and discipline in the armed forces. However,

see R.C.M. 203

    concerning subject-matter jurisdiction.
      (b)

Breach of custom of the service

      . A breach of a custom of the service may result in a violation of clause 1 of Article 134. In its legal sense, “custom” means more than a method of procedure or a mode of conduct or behavior which is merely of frequent or usual occurrence. Custom arises out of long established practices which by common usage have attained the force of law in the military or other community affected by them. No custom may be contrary to existing law or regulation. A custom which has not been adopted by existing statute or regulation ceases to exist when its observance has been generally abandoned. Many customs of the service are now set forth in regulations of the vari ous armed forces. Violations of these customs should be charged under Article 92 as violations of the regulations in which they appear if the regulation is punitive.

See

    paragraph 16c.

(3) Conduct of a nature to bring discredit upon the armed forces (clause 2). “Discredit” means to injure the reputation of. This clause of Article 134 makes punishable conduct which has a tendency to bring the service into disrepute or which tends to lower it in public esteem. Acts in violation of a local civil law or a foreign law may be punished if they are of a nature to bring discredit upon the armed forces. However, see R.C.M. 203 concerning subject-matter jurisdiction.

(4) Crimes and offenses not capital (clause 3).

      (a)

In general

      . State and foreign laws are not included within the crimes and offenses not capital referred to in this clause of Article 134 and violations thereof may not be prosecuted as such except when State law becomes Federal law of local application under

section 13 of title 18 of the United States Code

      (Federal Assimilative Crimes Act—

see

    subparagraph (4) (c) below). For the purpose of court-martial jurisdiction, the laws which may be applied under clause 3 of Article 134 are divided into two groups: crimes and offenses of unlimited application (crimes which are punishable regardless where they may be committed), and crimes and offenses of local application (crimes which are punishable only if committed in a reas of federal jurisdiction).

(b) Crimes and offenses of unlimited application. Certain noncapital crimes and offenses prohibited by the United States Code are made applicable under clause 3 of Article 134 to all persons subject to the code regardless where the wrongful act or omission occurred. Examples include: counterfeiting ( 18 U.S.C. § 471), and various frauds against the Government not covered by Article 132.

(c) Crimes and offenses of local application.

      (i)

In general

    . A person subject to the code may not be punished under clause 3 of Article 134 for an offense that occurred in a place where the law in question did not apply. For example, a person may not be punished under clause 3 of Article 134 when the act occurred in a foreign country merely because that act would have been an offense under the United States Code had the act occurred in the United States. Regardless where committed, such an act might be punishable under clauses 1 or 2 of Article 134. There are two types of congressional enactments of local application: specific federal statutes (defining particular crimes), and a general federal statute, the Federal Assimilative Crimes Act (which adopts certain state criminal laws).

(5) Limitations on Article 134.

      (a)

Preemption doctrine

      . The preemption doc-trine prohibits application of Article 134 to conduct covered by Articles 80 through 132. For example, larceny is covered in

Article 121

    , and if an element of that offense is lacking—for example, intent— there can be no larceny or larceny-type offense, either under Article 121 or, because of preemption, under Article 134. Article 134 cannot be used to create a new kind of larceny offense, one without the required intent, where Congress has already set the minimum requirements for such an offense in Article 121.

(b) Capital offense. A capital offense may not be tried under Article 134.

Above Information from Manual for Court Martial.

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Obama’s Comments On Military Sex Abuse Constitute “Undue Command Influence”

Two defendants in military sexual assault cases cannot be punitively discharged, if found guilty, because of “unlawful command influence” derived from comments made by President Barack Obama, a judge ruled in a Hawaii military court week of June 10.

Navy Judge CDR. Marcus Fulton ruled during pretrial hearings in two sexual assault cases — U.S. vs. Johnson and U.S. vs. Fuentes — that comments made by Obama as commander in chief would unduly influence any potential sentencing, according to a court documents obtained by Stars and Stripes.

On Wednesday and Thursday, Fulton approved the pretrial defense motions, which used as evidence comments that Obama made about sexual assault at a May 7 news conference.

The judge’s pretrial ruling means that if either defendant is found guilty, whether by a jury or a military judge, they cannot receive a bad conduct discharge or a dishonorable discharge. Sailors found guilty under the Uniform Code of Military Justice’s Article 120, which covers several sexual crimes including assault and rape, generally receive punitive discharges.

“A member of the public would not hear the President’s statement to be a simple admonition to hold members accountable,” Fulton stated. “A member of the public would draw the connection between the ‘dishonorable discharge’ required by the President and a punitive discharge approved by the convening authority.

“The strain on the system created by asking a convening authority to disregard [Obama’s] statement in this environment would be too much to sustain public confidence.”

The ruling sets the stage for defense attorneys to use the same arguments in sexual assault cases throughout the military.

Should other judges accept the same line of reasoning, commands would have to consider issuing lesser administrative discharges to servicemembers found guilty of sexual assault. In some cases, this could allow servicemembers found guilty of sex crimes to retain veterans benefits, according to Defense Department regulations.

“I think that as a defense attorney, I would raise this argument in virtually any [sexual assault] case I had,” said Victor Hansen, vice president of the National Institute of Military Justice and former instructor at the Army’s JAG school.

 

President Barack Obama said that he has “no tolerance” for sexual assault in the military, comments made in the wake of a new Pentagon report showing the instances of such crimes have spiked since 2010.

The president said he had spoken today with Defense Secretary Chuck Hagel to urge him to “exponentially step up” efforts to identify suspects in assaults, and aggressively prosecute those cases.

“The bottom line is: I have no tolerance for this,” Obama said at a press conference following his meeting with South Korean President Park Geun-hye.

‘I expect consequences,” Obama added. “So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. 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.”

(…)

“For those who are in uniform who’ve experience sexual assault, I want them to hear directly from their commander in chief that I’ve got their backs,” the president said. “I will support them. And we’re not going to tolerate this stuff, and there will be accountability.”

What constitutes “undue command influence” is, at least in part, established by Article 37 of the Uniform Code of Military Justice:

(a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. The foregoing provisions of the subsection shall not apply with respect to (1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or (2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel.

The operative question here is whether the comments by President Obama and others in the chain of command, which based on how they are set forth in the opinion seem to be little more than generalized statements about the need for increased vigilance against sexual assault in the military constitute an attempt to “coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.”  In his ruling, the presiding Judge found that there was sufficient reason to believe that the President’s insistence that members of the military who have engaged in sexual assault should be “prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged” constituted at least potential undue influence over the sentencing phase of the hearing in the case before him. Consequently, he ruled that if the Defendant is convicted, the military jury would not be able to impose a dishonorable discharge or similar punishing upon him. As noted above, this would potentially mean that the Defendant would remain fully eligible for all veterans benefits despite having been convicted of a crime while in the military.

I don’t have the expertise in military criminal law to comment on the Judge’s decision here, however the immediate consequences of his ruling. Defense attorneys representing members of the military facing similar charges will without a doubt file similar motions in the cases they are involved in, and we’re likely to get contradictory rulings on the matter from the presiding Judges in each of those cases. Additionally, the ruling in these cases will likely end up being appealed, likely before the trial actually starts. As for the President’s statement itself, I can’t help but think that the Judge got it wrong here. On it’s face, what the President said struck me as a general, benign, statement regarding future policy and the message that the Commander in Chief wishes the military to take the issue of sexual assault far more seriously than it has been. Is that “undue command influence?” As I said, I’m not an expert in this area so I’ll leave that to others, but it does feel to me like the Judge went a little over the top here. I suppose we can be grateful that he didn’t dismiss the cases completely.

On a general level, though, this case does point out the importance of the White House in general, and the President specifically, not getting involved in criminal investigations and prosecutions that occur under his watch, whether in the civilian or military spheres. Recently, for example, the White House has been criticized for not commenting directly on the Justice Department’s investigation of leaks that includes pursuing information from journalists using subpoenas and search warrants. There has also been a lot of criticism directed at the White House from the right for it failure to officially designating the November 2009 Ford Hood massacre as a terrorist act, and that Major Nidal Hasan continues to receive his military pay while awaiting trial on those charges. In both cases, the White House has pointedly refused to comment on the cases at hand, and that was entirely the appropriate reaction. Specific comments from the President regarding guilt or innocence of a Defendant would be highly inappropriate and would likely result in defense attorneys moving for mistrials at any criminal proceeding. The comments the President made here, of course, were not about a specific  case, but this ruling is a pretty good reminder of what could happen if Presidents started bending to the demands of reporters or political opponents that they make comment on such matters.

 

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Military Commanders Wake Up To Broad Reach Of Proposed Changes By Civilians To Military Justice Code

English: General Martin E. Dempsey, USA, 18thC...

English: General Martin E. Dempsey, USA, 18thChairman of the Joint Chiefs of Staff. (Photo credit: Wikipedia)

English: Kirsten Gillibrand, New York's junior...

English: Kirsten Gillibrand, New York’s junior United States Senator (Photo credit: Wikipedia)

WASHINGTON (AP) — The Uniform Code Of Military Justice (UCMJ) gives American military commanders  substantial power to discipline the troops they lead. However an epidemic of sexual assaults in the armed forces has Congress considering changes to that well established authority.

The big question is by how far and how wide?

Army Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, and the four-star officers atop each service are scheduled to testify June 4th at a Senate hearing on congressional proposals to modify theUCMJ with the aim of staunching the escalating number of sexual assaults that have outraged the military and the public.

Dempsey and other military leaders say they are open to legislative solutions to the problem. But, they are deeply concerned that too drastic an overhaul by Congress will lead to unintended and alarming consequences.

Curbing too sharply a commander’s ability to decide how and when to punish or pardon service members will send a message there is lack of faith in the officer corps, and that in turn will undermine the efficiency and effectiveness of the military in peacetime and war, Dempsey warned in a recent letter to Sen. Carl Levin, D-Mich., chairman of the Senate Armed Services Committee.

Paradoxically, the Defense Department’s failure so far to change the military’s male-dominated culture is driving a vocal group of mainly female lawmakers led by Sen. Kirsten Gillibrand, D-N.Y., to advocate aggressive reforms.

Tinkering at the edges, they argue, won’t produce the seismic shift needed to send the message that sexist attitudes and behaviors will no longer be tolerated. Victims need to be confident that if they report a crime their allegations won’t be discounted and they won’t face retaliation.

The latest in a string of allegations came May 31, 2013.

The Pentagon said the U.S. Naval Academy is investigating allegations that three football team members sexually assaulted a female midshipman at an off-campus house more than a year ago, and a lawyer for the woman says she was “ostracized” on campus after she reported it.

The Naval Academy investigation follows several recent arrests: A soldier at the U.S. Military Academy at West Point was charged with secretly photographing women, including in a bathroom. The Air Force officer who led the service’s Sexual Assault Prevention and Response unit was arrested on charges of groping a woman. And the manager of the Army’s sexual assault response program at Fort Campbell, Ky., was relieved of his post after his arrest in a domestic dispute with his ex-wife.

The Pentagon estimated in a report last month that up to 26,000 military members may have been sexually assaulted last year, up from an estimated 19,000 assaults in 2012, based on an anonymous survey of military personnel. While the number of sexual assaults members of the military actually reported rose 6 percent to 3,374 in 2012, thousands of victims are still unwilling to come forward despite new oversight and assistance programs aimed at curbing the crimes, the report said.

Those numbers and outrage over two recent decisions by Air Force generals overturning juries’ guilty verdicts in sexual assault cases are generating support for Gillibrand’s proposal to largely strip commanding officers of the power to toss out a verdict, a change initially recommended in April by Defense Secretary Chuck Hagel and backed by Dempsey, the service chiefs and many members of Congress.

But Gillibrand’s bill goes much farthertoo far, according to Dempsey. It would remove commanders from the process of deciding whether serious crimes, including sexual misconduct cases, go to trial. That judgment would rest with seasoned trial counsels who have prosecutorial experience and hold the rank of colonel or above.

Her legislation, which has 18 cosponsors that include four Republicans, also would take away a commander’s authority to convene a court-martial. That responsibility would be given to new and separate offices outside the victim’s chain of command.

“The current system allowing commanders to have sole discretion in the disposition of legal matters is clearly broken and has a chilling effect on reporting,” said Gillibrand, who chairs the Armed Services Committee’s personnel subcommittee. “We must … increase accountability within the system by removing the influence of the chain of command in the prosecution of intolerable crimes.”

In a May 20 letter to Levin, Dempsey said taking away a commander’s ability to convene a court-martial would “radically” alter a principal tenet of military law dating back two centuries and merged more than 60 years ago into a single Uniform Code of Military Justice.

“While Congress has modified the UCMJ from time to time, it has never removed commanders from the military justice system,” Dempsey wrote. “The consequences of such a decision would be far-reaching and extraordinarily damaging to the nation’s security.

Whether all or parts of Gillibrand’s Military Justice Improvement Act are added to the defense policy bill for the 2014 fiscal year remains to be seen.

But changes are coming. The GOP-led House Armed Services military personnel subcommittee used Hagel’s April recommendation as a starting point and then went further in a bill it approved two weeks ago.

In addition to taking away the authority to reverse courts-martial rulings, the subcommittee voted to establish dismissal or dishonorable discharge as the mandatory minimum sentence under military law for service members found guilty of rape, sexual assault, forcible sodomy or an attempt to commit those offenses. Commanders also would be barred from reducing or commuting the minimum sentence except in situations where the accused substantially aided the government in the investigation or prosecution of another assailant.

The House bill, however, stops short of taking those cases outside the chain of command, as Gillibrand’s bill proposes. Rep. Michael Turner, R-Ohio, who co-chairs the House Military Sexual Assault Prevention Caucus, said the focus should be on preventing sexual assaults, not scrapping central elements of the current military justice system.

The hearing June 4 may indicate how far the Senate Armed Services Committee is willing to go. A final plan will eventually be produced after any differences between the House and Senate are resolved.

Levin has not publicly stated his position on Gillibrand’s proposal but has made clear he is dissatisfied with the Pentagon’s efforts to eradicate what he has described as the “plague of sexual assaults in the military.”

And Sen. Claire McCaskill, D-Mo., an Armed Services Committee member and critic of the Pentagon’s handling of sexual assault cases, isn’t co-sponsoring Gillibrand’s bill, backing instead many of the changes the House panel approved.

McCaskill told reporters last month that she’s not opposed to Gillibrand’s legislation but wants to be sure Congress doesn’t squander a chance to pass a bill because of partisan differences over its scope. “I am tired of trying to legislate around the gridlock in Congress,” she said.

___

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Hard Cases Make Bad Law. Dissatisfaction With One Case, No Reason To Change Military Code Of Justice.

 

Lt. Gen. Craig Franklin, commander of the 3rd Air Force at Ramstein Air Base in Germany convened a court-martial to try Lt. Col. James Wilkerson III on charges of, among other things, sexual assault of a female, not his wife. Lt. Col. Wilkerson was tried by a jury and found guilty as charged. In performing his duties as Convening Authority under the Uniform Code of Military Justice (UCMJ), Lt. Gen. Franklin set aside the sexual assault conviction.

 

The February 2013 decision ignited a firestorm on Capitol Hill and drew scrutiny to the separate set of laws governing military members, known as the UCMJ. Following his review of the case, Defense Secretary Chuck Hagel proposed removing the convening authority from commanders in major cases.

(He did not specify what he thought would constitute a major case.)

 

Lt. Gen. Franklin defended his decision in a six-page letter he submitted to the service in response to the uproar. He said accusations that his motivation was to protect a fellow fighter pilot are “preposterous.” Accusations that he doesn’t understand sexual assault or take the crime seriously “are complete and utter nonsense,” he wrote. Allegations that his decision was influenced by his previous role commanding a unit the pilot later served in “are equally preposterous,” he wrote.

 

In the letter, Franklin, says he struggled with the decision. However, after he reviewed the evidence, he found the defendant, Lt. Col. James Wilkerson III, and his wife, Beth, more credible than the alleged victim, Ms Kimberly Hanks, who has since come forward publicly to discuss the matter.

Approving the jury’s finding of guilt “would have been an act of cowardice,” Franklin wrote. “I hold a genuine and reasonable doubt that Lt. Col. Wilkerson committed the crime,” he wrote. “My court-martial action to disapprove findings and to dismiss the charges was the right, the just, and the only thing to do.”

 

Wilkerson, then the inspector general at Aviano Air Base in Italy and a former F-16 pilot, was found guilty of multiple charges to include aggravated assault. He was sentenced to a year in prison and dismissal from the service before Franklin overturned the conviction.

 

Ms Hanks accused him of fondling her breasts and genitalia as she slept in his guest bedroom, according to court documents. The two met at a club with groups of friends after a rock concert that was held on base, organized by the USO and featuring the alternative rock band, Seether, according to her testimony.

 

Ms Hanks is a divorcee. She worked as a civilian contractor in the medical clinic on the base. She alleged that she previously did not know Lt. Col.Wilkerson but some how she wound up at his home in Roverado. Ms Hanks said she awoke in a bedroom with Lt. Col.Wilkerson when his wife entered the room, turned on the lights and said: “What the hell is going on?”

 

Ms Hanks testified that the woman then ordered her to, “Get the hell out of my house.”

In his letter, Lt. Gen. Franklin said he was persuaded in part by the many letters of clemency from family, friends and colleagues of the Lt. Col. Wilkersons that “painted a consistent picture of a person who adored his wife and 9-year-old son, as well as a picture of a long-serving professional Air Force officer.”

 

Lt. Gen. Franklin also makes a point to cast doubt on Lt. Col. Wilkerson’s failed polygraph test.

“A polygraph is only an investigative tool to assist in the potential focus of the investigation and/or to attempt to elicit admissions of guilt,” he wrote. “It is not a ‘lie-detector test,’ nor is it ‘pass’ or ‘fail.’ Because of the inherent unreliability of polygraphs, they are entirely inadmissible in a court-martial.”

 

As one would expect, lawmakers and supporters of sexual-assault victims were shocked by Lt. Gen. Franklin’s letter.

 

“This explanation crystalizes exactly why the convening authority should not have the unilateral ability to overturn a jury verdict — and why we need legislation that restricts their ability to do so,” Sen. Claire McCaskill, D-Mo., said in a statement. “This letter is filled with selective reasoning and assumptions from someone with no legal training, and it’s appalling that the reasoning spelled out in the letter served as the basis to overturn a jury verdict in this case.”

 

In light of the case, McCaskill introduced legislation that would curtail the authority of military commanders to dismiss jury convictions against sex offenders.

 

Protect Our Defenders, a nonprofit based in Burlingame, Calif., called for Lt. Gen. Franklin to be dismissed from the military. “Lt. Gen. Franklin made a deeply flawed and inappropriate decision,” the group’s president, Nancy Parrish, said in a statement. “Rather than rely on the credibility determinations of the senior members of the jury he selected, Franklin chose to accept the word of Wilkerson’s supporters.”

 

Lt. Col. Wilkerson will remain on active duty and is being transferred to Davis-Monthan Air Force Base, Ariz., where he will become chief of flight safety for the 12th Air Force (Air Forces Southern), according to Master Sgt. Kelly Ogden, a spokeswoman for the unit. He is expected to arrive later this month or in early May.

 

Defense Secretary Chuck Hagel on April 8 said he would ask Congress to pass legislation that would prevent commanders from overturning convictions without explanation.

In 2011, less than half of the reported 3,200 sexual assaults in the military resulted in disciplinary action, according to the Defense Department. The number of actual sexual assaults each year is probably closer to 19,000, based on anonymous surveys of active-duty service members.

 

 

                       (U. S. Air Force Academy cadets charged with sexual assault.)

 

The number of sexual assaults at military academies has been on the rise. No cadet tried or convicted of sexual assault has had his conviction set aside by the Convening Authority.

Sexual assault reports at the Air Force Academy jumped nearly 60 percent during the last academic year while the prevalence of the crime remained about the same, according to a new Defense Department study.

The results, which mirror the two other service institutions — the Military Academy and the Naval Academy — signal greater victim confidence but show that efforts to reduce sexual assaults among future military leaders have been unsuccessful.

Air Force cadets made 52 sexual assault reports during the 2011-2012 year, up 58 percent from 33 in 2010-2011. They also accounted for 65 percent of the 80 reports made at all three academies, despite sim­ilar student populations.

In 44 of the 80 reports, victims said they were victimized by a fel­low cadet or midshipman, the study said. Twenty-five incidents occurred on academy grounds.

 

 

 

(U. S. Coast Guard Academy cadet, Webster Smith)

A cadet at the U. S. Coast Guard Academy was convicted of sexual assault in 2006. It was the first court-martial of a cadet in the history of the U. S. Coast Guard. Cadet Webster Smith was only six months away from graduating when he was accused, tried, and convicted. He protested his innocence. His case was appealed all the way to the U. S. Supreme Court, but the Supreme Court refused to grant a review of the conviction. Cadet Smith’s petition was dismissed without comment by the Supreme Court.

 

 

 

The Webster Smith Story is an American tragedy. It is not just the story of a Coast Guard Academy cadet; it is the story of an American family. To his classmates, teachers, and coaches at the Coast Guard Academy Webster Smith appeared to be a magnetic, charming and gifted man, who had risen above his circumstances. Yet, in a moment, as if in the twinkling of an eye, a swift series of events diminished his popularity, vilified his name, and assailed his honor. His image was converted by senior Coast Guard officers from a popular athlete and nice guy to that of a sexual predator and public enemy number one at the Coast Guard Academy. The Webster Smith case was a litmus test for justice in America.

 

                                              (Ariana Klay, former USMC officer)

Lt. Ariana Klay, a U. S. Naval Academy graduate, served as a protocol officer for the U. S. Marine Corps Barracks, Washington, DC. She alleged that while there, she was sexually harassed by a lieutenant colonel, a major and a captain. She said she was gang-raped by a Marine officer and his civilian friend, a former Marine.

Lt. Klay alleged that the Marine officer threatened to kill her and told his friend he would show him “what a slut she was” and “humiliate” her. After she reported the alleged rapes and subsequent harassment, the Marine Corps investigation ruled that she welcomed the harassment because “she wore makeup, regulation-length skirts as a part of her uniform and exercised in running shorts and tank tops.”

The Marine Corps did not punish any of those who were accused of sexually harassing Lt. Klay. One of her alleged harassers was granted a waiver by the Corps that permitted him to get a security clearance despite accusations of hazing and sexual misconduct against not only Lt.  Klay but many others. He was selected to be in a nationally televised recruitment commercial while he was still under investigation.

The Marine Corps finally court-martialed one of Lt. Klay’s alleged attackers but didn’t convict him of rape, instead finding him guilty of adultery and indecent language (a common escape by military courts from the rape charge). The military court ruled that Lt.  Klay “consented” to having sex with the men despite the evidence that the accused threatened to kill her.Lt. Klay has attempted suicide since the alleged rapes and harassment and has been diagnosed with post-traumatic stress disorder.

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Gen David Petraeus May Still Face Court-martial

The Army could force retired Gen. David Petraeus back into uniform to face charges if ongoing investigations turn up evidence of an earlier timeline for the start of his affair with Paula Broadwell, military law experts said.

“As a regular officer, you’re subject to court-martial jurisdiction forever,” said Michael Noone, a Catholic University law professor and a retired Air Force colonel and judge advocate general.

“Theoretically, Petraeus would be subject to court-martial for any offenses discovered after he leaves service,” and could be called back to duty to answer for them although the prospect was unlikely.

The most obvious offense that Petraeus could face would be adultery, a violation of Article 134 of the Uniform Code of Military Justice, but adultery charges in the military are rare and rarer still as stand-alone offenses.

 

Petraeus has been as careful in admitting to the affair as he was careless in becoming involved with Broadwell, a West Point graduate and lieutenant colonel in the Army reserves.

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Through former military aides, Petraeus has put out word that the sexual relationship with Broadwell did not begin until after he retired from active duty and became CIA director in September 2011, although she was closely involved with him for several years while working on her book “All In: The Education of David Petraeus.”

And even if proof emerged of a sexual relationship before Petraeus retired, the military would be unlikely to pursue it. “The chances are low, if any, of that happening,” Cave said. “I’m not convinced that would change things dramatically.”

“But if evidence of abuse of status or the misuse of government funds” to further the relationship with Broadwell came to light, “that would be an extraordinary change in the landscape,” Cave said.

The FBI investigation of the affair is still open. It began with a complaint from Florida socialite Jill Kelley to an FBI friend about allegedly threatening emails she was receiving. The emails were eventually traced to Broadwell, who apparently saw Kelley as a rival.

The email trail then led to Marine Gen. John Allen, who succeeded Petraeus as overall commander in Afghanistan. Allen had exchanged a large volume of email with Kelley.

Allen’s nomination as head of U.S. European Command has now been put on hold while the Defense Department’s Inspector General investigates the Allen-Kelley emails, which have been described by a defense official as possibly “inappropriate and flirtatious.”

The Inspector General’s office of the CIA is also investigating whether Petraeus may have disclosed classified information to Broadwell during their involvement.

Despite the ongoing investigations, the consensus of several military law experts was that there was little appetite to pursue a case against Petraeus.

“Sure, in theory he could be brought back into the military, but that’s not going to happen,” said Gary Solis, a Marine Vietnam veteran and a former JAG who is now a professor at the Georgetown University Law Center. “Nobody is going to charge David Petraeus.”

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