WASHINGTON — The turmoil over how to end an epidemic of sexual assaults in the U.S. military is far from over as Congress haggles over legislative remedies and new details emerge about a high-profile case involving an Army general and a female captain under his command.
In a rare display of bipartisanship, the Senate unanimously approved legislation this week to better protect victims within the ranks and ban the “good soldier defense” to make sure a defendant’s fate is determined solely by evidence. But the House has signaled it won’t take up the bill immediately despite the momentum generated by the Senate’s 97-0 vote.
The trial at Fort Bragg, N.C., of Brig. Gen. Jeffrey A. Sinclair also may act as a referendum of sorts on whether more dramatic changes in the military justice system are necessary. The Senate last week defeated a bill by Sen. Kirsten Gillibrand, D-N.Y., that would have stripped commanders of their authority to prosecute sexual assault cases, placing that power with military lawyers instead.
But a recent ruling in the Sinclair case by the judge, Col. James Pohl, could aid Gillibrand and her supporters in their efforts to revive the bill. Sinclair, the former deputy commander of the 82nd Airborne Division at Fort Bragg, is accused of twice forcing a female captain to perform oral sex on him in Afghanistan in 2011 during a three-year extramarital affair. He has admitted to the affair but denied assaulting the woman.
After reviewing a series of emails connected to Sinclair’s case, Pohl said a decision by military officials at Fort Bragg to reject a plea bargain with the general may have been improperly influenced by political concerns. In the emails, military officials warned that allowing the general to plea bargain, and avoid trial, would “send the wrong signal,” Pohl said.
On Tuesday Pohl dismissed the jury to allow the defense time to work out a new plea deal with the military.
Sinclair’s attorneys said the Army pressed ahead with a weak case for fear of the political blowback if they had dropped charges against such a high-profile defendant.
“This case is Exhibit A for why the Senate should pass the Gillibrand bill when they next have an opportunity,” said Eugene R. Fidell, who teaches military justice at Yale Law School.
An Associated Press investigation last month into more than 1,000 reports of sex crimes found a pattern of inconsistent judgments and light penalties at U.S. bases in Japan. In two rape cases, commanders overruled recommendations to court-martial and dropped the charges instead.
Even when military authorities agreed a crime had been committed, the suspect was unlikely to serve time, according to reports involving U.S. military personnel in Japan between 2005 and early 2013. Nearly two-thirds of 244 service members whose punishments were detailed in the records were not incarcerated. Instead they were fined, demoted, restricted to their bases or removed from the military. In more than 30 cases, a letter of reprimand was the only punishment.
The Pentagon’s top brass is firmly opposed to removing sexual assault cases from the chain of command, arguing that officers should have more responsibility, not less, for the conduct of the troops they lead.
Military officials said Tuesday that the fact that the Sinclair case went to trial shows the Gillibrand legislation to take control out of the hands of commanders isn’t necessary. Two officials familiar with the case said it went to trial because the commander ordered the court-martial. The lead prosecutor had urged the most serious charges be dropped against Sinclair because of questions about the victim’s statements.
They said the case illustrates that while prosecutors may make decisions based on whether they can win or lose a case, commanders will push to pursue a case if they believe a subordinate behaved improperly. The officials spoke on condition of anonymity because they were not authorized to publicly discuss an ongoing legal matter.
Glen Caplin, a spokesman for Gillibrand, said Tuesday that an independent military justice system “is not only the right thing to do for our men and women in uniform, but would also mitigate issues of undue command influence” in military legal proceedings.
Gillibrand has vowed to seek another vote on her legislation, most likely in the late spring when the Senate begins work on a sweeping defense policy bill for the 2015 fiscal year that begins Oct. 1.
Reps. Tulsi Gabbard, D-Hawaii, and Dan Benishek, R-Mich., have introduced companion legislation in the House. The House will likely address their bill as well as the legislation unanimously approved by the Senate when it assembles its own version of the 2015 defense policy bill in the coming weeks.
Gillibrand fell just five votes short of the 60 she needed to overcome a filibuster. She garnered support from 11 Republicans, including conservative Sens. Ted Cruz of Texas, Rand Paul of Kentucky and David Vitter of Louisiana.
Gabbard and Benishek have gathered 71 co-sponsors so far, including 31 Republicans.
“The common thread we have heard from sexual assault survivors has been the call for removing the decision-making authority on whether or not to prosecute these violent sexual crimes out of the chain of command,” Gabbard said Tuesday.
The Pentagon has estimated that as many as 26,000 military members may have been sexually assaulted in 2012, based on an anonymous survey. Many victims are still unwilling to come forward despite new oversight and assistance programs aimed at curbing abuse, the military says.
Several changes already have been made in the Uniform Code of Military Justice. Outraged lawmakers — Democrats and Republicans — rewrote parts last year, stripping commanders of their ability to overturn military jury convictions. That law also requires a civilian review if a commander declines to prosecute a case and requires that any individual convicted of sexual assault face a dishonorable discharge or dismissal.
The law also provides alleged victims with legal counsel, eliminates the statute of limitations for courts-martial in rape and sexual assault cases and criminalizes retaliation against victims who report a sexual assault.
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