Characterize military justice system as slow, uncaring and broken
By Donna Cassata and Richard Lardner
Associated Press
WASHINGTON (AP) — Victims of sexual assault and violence in the military told Congress Wednesday they’re afflicted with a slow and uncaring system of justice that too often fails to hold perpetrators accountable and is fraught with institutional bias.
They told a Senate panel examining the military’s handling of sexual assault cases that the military justice system is broken and urged Congress to make changes in the law that would stem the rape, sexual assault and sexual harassment that they said are pervasive in the service branches.
Rebekah Havrilla, a former Army sergeant, told the committee that she encountered a “broken” military criminal justice system after she was raped by another service member while serving in Afghanistan. Havrilla described suffering from post-traumatic stress disorder and described how her case was eventually closed after senior commanders decided not to pursue charges.
“What we need is a military with a fair and impartial criminal justice system, one that is run by professional and legal experts, not unit commanders,” Havrilla said.
BriGette McCoy, a former Army specialist and a Persian Gulf war veteran, said she was raped when she was 18 and at her first duty station. But she did not report it. Three years later, she reported being sexually harassed and asked for an apology and to be removed from working directly with the offender.
“They did remove me from his team and his formal apology consisted of him driving by me on base and saying ‘sorry’ out of his open car door window,” McCoy told the Senate Armed Services personnel subcommittee.
The subcommittee’s hearing comes as members of Congress are expressing outrage over an Air Force general’s decision to reverse a guilty verdict in a sexual assault case that is spurring support for legislation that would prevent commanding officers from overturning rulings made by judges and juries at courts-martial proceedings.
Anu Bhagwati of the Service Women’s Action Network told the panel that commanders are unable to make impartial decisions because they usually have a professional relationship with the accused and, often times, with the victim as well. Bhagwati, a former Marine Corps captain, said court-martial cases should be left in the hands of “trained, professional, disinterested prosecutors.”
Under military law, a commander who convenes a court-martial is known as the convening authority and has the sole discretion to reduce or set aside guilty verdicts and sentences or to reverse a jury’s verdict.
Defense Secretary Chuck Hagel has ordered a review of Air Force Lt. Gen. Craig Franklin’s decision to overturn the sexual assault conviction against Lt. Col. James Wilkerson, a former inspector general at Aviano Air Base in Italy.
Sen. Kirsten Gillibrand, the chairwoman of the military personnel subcommittee, called the Wilkerson case “shocking” and promised to take a hard look at the military justice system. Nearly 2,500 sexual violence cases in the military services were reported in 2011, but only 240 made it to trial, Gillibrand said.
Wilkerson, a former inspector general at Aviano Air Base in Italy, was found guilty on Nov. 2 by a jury of military officers on charges of abusive sexual contact, aggravated sexual assault and three instances of conduct unbecoming of an officer and a gentleman. The victim was a civilian employee. Wilkerson was sentenced to a year in prison and dismissal from the service.
Wilkerson was at the U.S. Naval Consolidated Brig in Charleston, S.C., until Feb. 26, when Franklin exercised his discretion as the convening authority. Franklin reviewed the case over a three-week period and concluded “that the entire body of evidence was insufficient to meet the burden of proof beyond a reasonable doubt,” Hagel wrote in a March 7 letter to Sen. Barbara Boxer, D-Calif.
But Hagel told Boxer neither he nor the Air Force secretary is empowered to overrule Franklin, who is the commander of the 3rd Air Force at Ramstein Air Base in Germany.
Boxer said during testimony before the subcommittee that “immediate steps must be taken to prevent senior commanders from having the ability to unilaterally overturn a decision or sentence by a military court.”
In the wake of Franklin’s decision, Reps. Jackie Speier, D-Calif., Bruce Braley, D-Iowa, and Patrick Meehan, R-Pa., introduced legislation Tuesday in the House of Representatives that would strip military commanders of the power to overturn legal decisions or lessen sentences. Their bill would amend the Uniform Code of Military Justice to take away the power of a convening authority to dismiss, commute, lessen, or order a rehearing after a panel or judge has found the accused guilty and rendered a punishment.
Sen. Claire McCaskill, D-Mo., a member of the Senate Armed Services Committee, plans to introduce legislation soon that would change the Uniform Code of Military Justice by preventing a convening authority from overturning a decision reached by a jury. The legislation also would require the convening authority to issue a written justification for any action.
Military vs civilian law
WASHINGTON (AP) — Lawmakers and women advocacy groups were shocked when a three-star general threw out the conviction and sentence of an Air Force lieutenant colonel convicted of sexual assault in Europe. But the general’s apparent authority to do that is just one way in which the Uniform Code of Military Justice (UCMJ) differs from civilian law. Here are some examples:
CONVICTIONS
— Military: Under Article 60 of the UCMJ, the “convening authority” — usually a unit commander -- convenes a trial and later has “sole discretion” to dismiss any charge by setting aside a guilty finding. Authority to change the findings and sentence “is a matter of command prerogative.” There is an appeals process in military as well as civilian law, but when an Article 60 is made, as in this case, the issue never gets to the appeals court.
— Civilian: The only corresponding action would be if the governor of a state or the president of the United States pardoned the defendant after the conviction.
BRINGING CHARGES
— Military: An “investigating officer” decides whether prosecutors have enough evidence to bring a suspect to trial and this is done in a court session called “an Article 32 hearing.”
— Civilian: This corresponds to a preliminary hearing in civilian courts which are held before a judge.
PURPOSE OF LAW
— Military: According to the “Manual for Courts-Martial” rule book, the purpose of military law is to promote justice, maintain order and foster military efficiency, all in the interest of national security.
— Civilian: The purpose of criminal prosecutions is to establish guilt for an alleged violation of law. Things that might be grounds for firing or a reprimand in the civilian world — such as being chronically late for work, or adultery with a co-worker — might be subject to military prosecution because the system also is set up to promote order and discipline.
LAWYERS
— Military: Military prosecutors represent the government. All defendants are assigned military defense attorneys, but those facing serious charges often retain civilian lawyers to lead their defense.
— Civilian: Criminal defendants are entitled to free legal counsel only if they cannot afford their own lawyer.
