Should military commanders decide whether to prosecute accused sex offenders?

Saturday, March 8, 2014

Good morning:

I believe the answer is clear and unambiguous. No, they should not decide whether someone under their command should be prosecuted for a sex offense.

First, I believe decisions to prosecute someone for a crime should be made by someone who is trained in the law and the rules of evidence. Crimes consist of elements, each of which must be proven beyond a reasonable doubt. Whether a particular element can be proven beyond a reasonable doubt depends on whether there is admissible evidence to prove it.

Prosecutors have the requisite legal training and experience to make those decisions. Military commanders do not have that set of skills.

Second, a decision to prosecute or not to prosecute should be made by an impartial person who is neither biased in favor of nor prejudiced against the accuser or the accused. Military commanders usually know both the accuser and the accused. They cannot forget what they know and that means irrelevant considerations will often play a role in deciding whether to prosecute.

Third, the proof is in the pudding, so to speak. As I reported yesterday, there were over 1600 sexual-assault complaints pending in the military at the end of the fiscal year (September 30th) and no one seriously contends that sexual assaults are not a serious problem. The word “epidemic” most accurately describes the situation.

Fourth, just when the situation appeared to have reached its maximum high tide mark with the prosecution of Brigadier General Jeffrey Sinclair for sexually assaulting a young female captain with whom he had a three-year affair, we found out this week that Lt. Col. Joseph “Jay” Morse, the top lawyer in charge of the Army’s special-victims counsel (they prosecute sexual assault cases) has been accused of groping a military lawyer who worked for him.

Finally, the military has made no progress solving its horrific sexual-assault problem and it’s so bad now that even the Army’s chief prosecutor cannot keep his hands to himself.

Shame on Senator Claire McCaskill (D) and the 44 senators who voted with her to sustain a filibuster that defeated Senator Kirsten Gillibrand’s bill, which would have removed military commanders from deciding whether to prosecute sex offenses.

I think the correct answer to the question that I posed in the title is a proverbial “no brainer.”

Military commanders should not have anything to do with deciding whether to prosecute people in their command for sex offenses.

What do you think?

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11 Responses to Should military commanders decide whether to prosecute accused sex offenders?

  1. mark hellner says:

    Should the chief of police have the power of yea or nay with respect to prosecuting sex crimes perpetrated by those under his command?

    We got to stop putting uniforms and rank on some sort of pedestal that puts those who have them above the law.

    They are public servants and, as such, should be at the mercy of J Q taxpayer.

    This might come of as disrespectful, but “they” don’t protect my freedom. A soldier is a hired gun who follows orders. Their primary mission is to protect our borders and the interests of our nation state as a whole.

    Protecting my freedom is my duty.

    For example, in all probability, I would have been shot by the F wad Zimmerman because any ass who comes up to me asking about my business is infringing on my freedom and it would be my duty to inform him of such in most terse language.

    I admire soldiers as I do all proletarians, So again no disrespect is meant.

    • Diamonique says:

      >>For example, in all probability, I would have been shot by the F wad Zimmerman because any ass who comes up to me asking about my business is infringing on my freedom and it would be my duty to inform him of such in most terse language.<<

      I've always believed that's what started the altercation with TM and GZ.

  2. Malisha says:

    There is some rudimentary sense to the initial decision that a CO should be the person to decide whether someone in his command is or is not prosecuted for a criminal offense. But this presumes that the reason is that in warfare, a CO cannot have his troops being swiped away from him or he cannot do his job. On the other hand, he should have NO RIGHT to prevent prosecution once the emergency necessitating his command decision is over. That is, the statute of limitations for prosecution for ANY criminal offense can be tolled while the CO needs the services of his soldier. When the need finishes, the statute of limitations can begin to run again.

    But giving the CO the right to say “NO” to a prosecution altogether is completely unconstitutional. It means that individuals are denied equal protection of law if they are being victimized by abusers or criminals in the armed services. WAY WAY WRONG.

    The army is dangerous for children. Children’s rights on the army and other military bases are forfeit all the time. Even though the civilian child protection system is horrible, it is possible that the military one is even worse.

  3. lyn says:

    OT Professor, but just got done reading your excellent article of 2013 where you write that DD did not lie. I never thought she lied. It was Bernie and Crump who said she went to the hospital and was 16. Not her.

  4. Chris Street says:

    masonblue says military commanders are not equipped to make decisions about sex offense charges because they usually do not have law degrees. Wow. How many bosses and managers also do not have law degrees but can decide whether to legally prosecute an employee believed to have stolen from the company?
    Consider the city manager who is told one of his/her employees has sexually assaulted another employee. The city attorney is the first person the manager consults with to determine further steps. Likewise, a military commander has a JAG unit–a gaggle of attorneys with which to consult and gain legal advice. Also, I don’t agree that commanding officers (directly) know the soldiers involved in most sex offense cases. Speaking for myself, as a lowly enlisted person I can guarantee you my commanding general had no idea who I was.

    • bettykath says:

      An employee is not prosecuted by an employer. The employer can press charges, but it is the prosecutor that does the prosecuting.

      As I understand hierarchy as implemented in the military there is a chain of command. One complains to one’s immediate supervisor, not the general at the top. If the immediate supervisor decides not to pursue the complaint, that’s where it ends unless one goes over the head of the immediate supervisor, in which case one could be considered insubordinate and/or subjected to retaliation.

      Again, consider the unity of the command and the morale of the unit, if the victim is forced to serve with or under his or her attacker.

  5. Diamonique says:

    It makes me wonder why a woman would even bother being in the military. It’s a shame.

    • bettykath says:

      More women that men are being raped in the military. I, too, wonder why anyone would bother being in the military. If it were only used for defense it would be one thing, but it’s used as the strong arm of the corporations that want to rape and pillage a country. If we had affordable college education and good jobs, many recruits would be able to say no.

      It’s time to get rid of the standing army and beef up the National Guard that, by law, would only be able to be called up when needed for real national defense. The CIA needs to be dismantled, including all their plants in local governments and police. They’ve established that they are mischief makers, not spies. The VA system needs to upgraded and made into the single payer health care system. It’s time to also break up the big global corporations, including banks, into much smaller sizes. This country is not what it could, or should, be.

  6. Two sides to a story says:

    Me too. The military should not police itself and neither should police departments do their own internal investigations.

  7. bettykath says:

    Totally agree.

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