The Herald Bulletin

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March 21, 2014

As military sex cases end, more calls for change

FORT BRAGG, N.C. —  At nearly the same time Thursday, sexual assault cases against an Army general and a former Naval Academy football player came to a close, and neither produced a conviction on that charge.

Some members in Congress and advocates for women said the results were more proof the military justice system needs an overhaul.

On the other side of the debate, people say the system worked like it was supposed to because, they say, neither case should have gone to trial in the first place.

Still, no one disagreed the military has a pervasive problem of sexual assaults within its ranks, and the cases served as a reminder that politics was never far away from any decision.

Eugene R. Fidell, who teaches military law at Yale, said military commanders who forged ahead with the trials were mindful of the political climate.

"They are aware, trust me on this. They are aware the Senate will not confirm people to higher pay grade if they are believed to be soft on sexual offenses," Fidell said.

Just last week, Congress debated ways to curb the assaults and the Senate approved a measure to protect victims and bar the "good soldier defense" to ensure evidence alone determines a defendant's fate, but the debate is far from over.

Sexual assault charges were at the center of both cases, but they were far from the same.

In Brig Gen. Jeffrey Sinclair's case, he had a three-year affair with a female captain who accused him of twice forcing her to perform oral sex on him. The case started to crumble as Sinclair's lawyers hammered away at the woman's credibility and raised questions about whether Sinclair's commander improperly pressed ahead with a trial because of political considerations — namely, a desire to show the Army's resolve to combat sexual misconduct.

Ultimately, Sinclair pleaded guilty to lesser charges of adultery and conducting inappropriate relationships with two others by asking them for nude pictures and exchanging sexually explicit email.

Despite facing more than 20 years in prison, he was spared any time behind bars Thursday and sentenced to a reprimand and a $20,000 fine — a punishment some members of Congress decried as shockingly light.

Sinclair, 51, immediately announced his retirement, capping a humiliating fall for the battle-tested commander once regarded as a rising star in the Army. A disciplinary board could still bust him in rank and severely reduce his pension.

"The system worked. I've always been proud of my Army," Sinclair said outside court after reacting to his sentence with a smile and an embrace of his lawyers. "All I want to do now is go north and hug my kids and my wife."

Rep. Jackie Speier, D-Calif., called Sinclair's sentence "laughable."

"Even when the world is watching, the military has demonstrated their incompetence at meting out justice," Speier said in a statement. "This is another sordid example of how truly broken the military justice system is. This sentence is a mockery of military justice, a slap on the wrist nowhere close to being proportional to Sinclair's offenses."

The judge, Col. James Pohl, did not explain how he arrived at a much lighter sentence.

Prosecutors had no immediate comment.

If Sinclair had not announced his retirement, an Army disciplinary board would have almost certainly forced him into it. Now the board will decide whether to demote him, which could cost him hundreds of thousands of dollars in pension benefits. Sinclair made about $145,000 a year in base pay.

In the other case, a military judge acquitted Navy Midshipman Joshua Tate, of Nashville, Tenn., of raping a woman who had been drinking heavily at a party. Prosecutors initially accused two other students, all of them football players at the time, of sexually assaulting the woman during the party, but those charges were dropped.

The judge, Col. Daniel Daugherty, said the case presented "difficult and complex questions" and the vast majority of testimony was clouded by alcohol and the passing of time. He said prosecutors didn't prove the case beyond a reasonable doubt.

Philip Cave, a retired Navy lawyer who is now a private defense attorney, said the military loses credibility when it goes forward with a case like Tate's, adding it leads to "increasing cynicism" and mistrust.

But Susan L. Burke, an attorney for the woman in the case, said the military justice system remains badly broken.

"Like so many survivors of sex crimes in the military, our client was twice victimized: first by her attacker and then by the failed investigation and prosecution of this case," Burke said in a statement.

Both alleged victims spent hours testifying about intimate details of their lives, a decision their attorneys said was brave.

A Pentagon report released last year estimated that as many as 26,000 military members may have been sexually assaulted in the prior year and that thousands of victims are unwilling to come forward out of fear their careers might be derailed.

"We think victims ought to be supported and people ought to be encouraged to come forward and the right cases brought. This was not the right case," said Sinclair's lawyer Richard Scheff.

Greg Jacob of the Service Women's Action Network said the case demonstrated the need for legislation that would strip commanders of the authority to prosecute cases and give that power to seasoned military lawyers.

The bill, backed by Sen. Kirsten Gillibrand, D-N.Y., failed earlier this month to get the 60 votes needed to advance in the Senate. She is expected to bring the legislation back later this year.

"This case has illustrated a military justice system in dire need of independence from the chain of command," Gillibrand said in a statement.

Not all senators are sold on the idea.

Sen. Lindsey Graham, a military lawyer for 31 years, said order and structure is critical to the military and taking commanders out of the decision will destroy cohesion.

"This has been a male dominated business, like fire departments and police departments. Women are indispensable. Quite frankly, the environment in the military needs to change and I believe it is. Every soldier, sailor, airman and Marine needs to own this," said Graham, R-S.C.

 

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