Commanders, they explained, have the necessary legal training, the professional advice of a JAG to evaluate cases for trial, the tools they need to make the right decisions under the UCMJ, and the willingness to vigorously prosecute sexual assault cases. The officers also agreed that taking the authority to refer charges away from the commanders could actually decrease the number of sexual assaults prosecuted.
Colonel Donna W.
Martin, USA, Commander, nd Military Police Group, stated that a prosecutor would be unlikely to have the same passion for discipline as a commander. King, USMC, Commander, Combat Logistics Regiment 15, stated that commanders do not consider judicial economy, which may be a consideration for an independent prosecutor. Colonel Jeannie M.
Leavitt, USAF, Commander, 4th Fighter Wing, explained that there could be instances where a prosecutor might not bring a prosecution due to shortcomings in evidence, but as a commander she would prosecute to promote the discipline of the defendant and the other troops in her unit. From a legal standpoint, commanders—who are not lawyers—need only probable cause to send a case to a court-martial i. Once they refer a case to court-martial, a military prosecutor prepares the case for trial. Military prosecutors, like their civilian counterparts, must prove their case beyond a reasonable doubt.
On the other hand, civilian prosecutors decide whether or not to charge someone and how to charge them. In evaluating cases for prosecution, they do not weigh whether or not filing charges enforces good order and discipline in the armed forces. Rather, they weigh and balance other issues, including first and foremost the evidence and whether or not the case fits within its internal charging guidelines. The facts also do not support this argument. None of our allies has a caseload as large as the armed forces of the United States. For example, the Army installation at Fort Hood alone has a higher conviction rate than Canada Defense Forces and is equal to the Israeli Defense Force in courts-martial for sexual assault offenses.
But chain of command, and accountability up and down the chain of command, is essential to carrying out the missions as ordered by the President, whose authority as Commander in Chief owes accountability to the people via elections and assures a military that will not threaten a constitutional democracy—whether America is engaged in an armed conflict or not. Some who favor the elimination of convening authority power argue that victims of sexual assault are limited in where they can report the crime, and thus removal of the convening authority charging power is the only solution.
But victims of sexual assault in the military have almost one dozen separate entities outside the chain of command to which they can report the crime. Of course, there are a host of other reasons. In addition to the long-standing and ongoing general military training GMT regarding sexual assault in the military for all active duty and reserve component personnel detailed in Appendix A , the services have committed themselves to litigation training for JAGs responsible for prosecuting and defending cases in courts-martial.
That training, both general in nature and specific to sexual assault cases, is part of the solution to making the military criminal justice system even stronger. As this paper argues, one key, additional component to making the military criminal justice system work better for victims and defendants alike, is for the Army, Air Force, and Marine Corps to do as the Navy JAG Corps has done and establish a litigation career track for their JAGs, as discussed later in this paper.
Proper litigation training is crucial for both prosecutors and defense counsel, in and outside the military.
Crime and Justice
As this paper demonstrates, and as the facts from official reports submitted by the services each year to the Court of Appeals for the Armed Forces CAAF show, the military has provided ongoing, top-notch training to criminal litigators for years. The best district attorney and public defender offices in the country, not surprisingly, also provide entry-level and ongoing training to their attorneys, as this paper demonstrates.
The CAAF reports also indicate that there has been a substantial increase in the amount of training and the number of programs addressing incidents of sexual assault.
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The Navy and Marine Corps. In , a Military Justice Litigation Career Track program was instituted in the Navy and, subsequently, career litigators were sent to civilian post-graduate schools to further their litigation training. This career track is a step in the right direction. The program permits both prosecutors and defense counsel to remain litigators throughout their entire career as JAGs. Because the position is permanent, these litigators are able to hone their skills through experience and training, and will consequently provide the Navy with a cohort of experienced litigators with credentials similar to those of litigators in the civilian criminal justice system.
Additionally, proven litigators are then able to apply and compete for positions as military-trial or appellate judges—a critical component of a properly functioning and 21st-century military justice system. The Navy has similarly intensified its training programs. In addition to the new offerings at the Naval Justice School, the reports also document a number of changes to naval litigation training. Within each of those categories, two separate series of measures were established: systems measures focusing on the macro-level performance of the JAG Corps and individual measures focusing on whether individual performances contributed to the overall JAG Corps goals and objectives.
These performance measures were to be used to conduct critical self-evaluation and increase advocacy skills and training curriculum of military justice practitioners. In , the Navy hired a sexual assault litigation specialist. The Marines have also instituted new policies to reflect their continuing emphasis on litigation and sexual assault training. In , the Marines launched an initiative to increase training, including instituting the TCAP to provide, among other things, training to trial counsel and defense counsel.
The Army. In , the Army reintroduced a program in which each Basic Course student acts as counsel in a contested court-martial. In the new course, students walk through a sexual assault fact pattern from start to finish and participate in 14 advocacy workshops. Other training offered for Army JAGs includes publication and distribution of the Advocacy Trainer, a learning tool that combines skill development drills and videos to augment the primary program. In , the Army also instituted a program aimed at identifying qualified personnel and ensuring that each JAG receives sufficient training.
Also in , the Army made further progress toward its goal of prosecuting and preventing sexual assaults with the implementation of a new Sexual Assault Prevention and Response Program. These official reports demonstrate that the Army leadership understands and supports continuing legal education for litigators. These formal training courses, aimed at entry-level, beginner, intermediate, and senior judge advocates, are commendable. The only way to institutionalize the efficiency and effectiveness of this training, however, is to create a career litigation track in each of the services.
Such flexibility would allow career military litigators to specialize in litigation and draw more from the training programs available.
Sexual Assault in the Military: Understanding the Problem and How to Fix It
The Air Force. The Air Force also offers programs to JAGs to improve their advocacy skills and increase the expertise of its legal system in the area of sexual assault. The STCs attend many hours of advocacy training, including a civilian career prosecutor class and classes on advanced trial advocacy, prosecuting complex cases, and protecting children online.
The Air Force sexual assault programs have undergone a similar evolution. For example, in , the Air Force began increasing its emphasis on sexual assault. Its Appellate Government Counsel created an interactive training scenario based on a sexual assault case entitled, Trauma to Trial.
Taken together, these reforms and new initiatives are impressive and a step in the right direction. The military has taken considerable strides toward creating a system that successfully trains litigators who handle very complex cases—and it deserves credit for doing so. However, a career litigation track in each JAG Corps would assist these lawyers in utilizing these new programs to prosecute all felonies, including sexual assaults.
This year is not the first time Congress has attempted to legislate a solution to the issue of sexual assault in the military. In , Congress attempted to address the issue by overhauling Article of the Uniform Code of Military Justice UCMJ , the provision that criminalizes sexual assault to make it easier to prosecute cases and win convictions.
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But the amendment backfired, throwing prosecutions into disarray. That episode should serve as a cautionary tale in the current debate. Based on this determination, the subcommittee unanimously concluded that change is not required. Nonetheless, Congress responded by amending the law to strip out the requirement that the prosecution prove lack of consent by the victim to win a conviction. After the defense meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist.
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In United States v. Neal, the defendant brought a constitutional challenge to the burden-shifting nature of consent as an affirmative defense, alleging that requiring the defendant to prove consent by a preponderance of the evidence unconstitutionally placed on the defendant the burden of disproving an element of the crime.
This narrow reading allowed the accused to introduce evidence of consent, even when that defense was unavailable, to rebut elements of the offense, such as the use of force. Accordingly, the CAAF threw out the conviction. Finally, in United States v. Medina, another aggravated sexual assault case that challenged the constitutionality of Article , the military judge did not instruct the members that the burden was on the accused to prove the affirmative defense of consent by a preponderance of the evidence.
Instead, ignoring the plain language of the statute, the military judge instructed the members that the evidence raised the defense of consent and that the government had the burden of disproving the defense beyond a reasonable doubt.
The CAAF found that, in deviating from the statute without explanation, the military judge was in error. Congress ultimately recognized its error and amended Article in The current statute reduces the number of offenses in Article to four: rape, sexual assault, aggravated sexual contact, and abusive sexual contact.
Commanders are part of the solution; they are not the problem. It is important to keep in mind that there are civilian district attorneys and detectives who sometimes fail to serve the interests of victims of violent crime, including sexual assault. Fortunately, they are few and far between. The solution in those situations is not to condemn all district attorneys or detectives, but hold those few accountable for their inaction and lack of professionalism.
Similarly, Congress should not eliminate the power of commanders to hold their personnel accountable by referring them to courts-martial, simply because of the actions of relatively few convening authorities. Congress should not ignore the institutions and leaders who are responsible for military justice as it seeks to make appropriate improvements to the current system.
The Problem Is Real. Similar studies done by the Department of Justice in the civilian college population, a comparable population to the military due to the high percentage of younger service members, reported higher rates of sexual assault. During the past few years, there has been a wave of proposed solutions to the issue of sexual assault in the military.
Both the executive and legislative branches have proposed a plethora of different reforms. Indeed, the sheer number of proposals is a testament to the commitment of both branches of government to the armed forces.