In defense of military justice

Last month's hearings to determine whether three Naval Academy students should face charges in a sexual assault case generated significant controversy, both because of the manner in which the victim of the alleged assault was questioned and because of broader criticism about how the military handles sexual assault. Yale law professor Eugene Fidell even used these pages to argue that the proceeding — known as an Article 32 hearing — should be the last of its kind. This crusade against military justice in Congress, the media and certain political interest groups reflects a rush to judgment that glosses over the delicate balance that must be struck in sexual assault cases between protecting an alleged victim and the legal and constitutional rights of a criminal defendant.

The Article 32 hearing has been mischaracterized as somehow inferior to the procedures in civilian courts. On the contrary, the pretrial investigation is far superior to the secret, ex parte, standardless inquisition that is a grand jury proceeding. The Article 32 process reveals strengths and weaknesses in cases that help prosecutors decide whether to proceed, and it permits defense attorneys to garner pretrial discovery they might not otherwise be able to access when witnesses refuse to cooperate.

Virtually ignored by most commentators is that the military rules of evidence also feature a rape shield provision modeled closely on the federal rule. The questioning being portrayed as abusive in the Naval Academy hearing is mainstream criminal practice and is closely related to a defendant's Sixth Amendment right to confront his or her accuser. If defense questioning of the alleged victim in the Annapolis pretrial investigation was over the line, it may be just as likely that the presiding officer — a human being required to make decisions on application of the rules in mere seconds — simply lost control of the hearing, rather than evidence of a systemic flaw. No rational lawyer enjoys being rough in the courtroom on an alleged sexual assault victim, but neither should we like sending an innocent person on a pathway to confinement on shortcut legal procedures. Where the system forces a choice, prioritizing the latter should prevail.

A second aspect of the USNA case that has garnered attention is that military authorities investigated the case late, and only after substantial outside pressure. This characterization misses the fact that the alleged victim initially refused to cooperate with military law enforcement authorities. If you think it is hard to prove a sexual assault case, try doing it without the help of the alleged victim. The military takes a beating on these cases, yet civilian prosecutors routinely decline to pursue charges because of the difficulty of meeting the "beyond a reasonable doubt" standard in cases where the alleged victim is uncooperative or was intoxicated or incapacitated, engaged in prior sexual conduct with a defendant, or placed herself in a compromising situation. Making these rational calculations is not blaming the victim: it is recognizing the realities of the criminal justice system and acting accordingly.

An objective study would doubtless show that the military prosecutes "borderline" cases more often than civilian authorities. The military's record is certainly better than that of civilian colleges, where alleged sexual assault is often treated not as a criminal offense but as a student conduct issue to be handled in "dorm courts" that lack the mature and well-resourced procedures in civil or military justice systems.

Yet because of political pressure, Congress risks taking rash action to "reform" military justice procedures. Some are advocating that that the power to refer cases to courts-martial be removed from senior commanders and vested in senior uniformed lawyers. Yet the lawyers in whom the authority would be vested still work for the very same generals and admirals Congress seeks to disenfranchise.

Rather than legislating by anecdote, Congress should undertake to conduct an objective study of the issue and focus on ensuring adequate investigative, prosecutorial, defense and judicial resources to scrutinize allegations of sexual assault and ensure that military investigative agencies are accountable to commanders for their work product. Congress ought also to look carefully at mandating aggressive personal conduct education programs, rather than tinkering with a system that works as well or better than in most civilian jurisdictions. Meanwhile, military commanders must identify risk factors within their commands and make corrections on their own initiative, such as eliminating dual-gender barracks and enforcing underage drinking, excessive drinking, fraternization and visitation rules.

The members of the all-volunteer force each signed up to support and defend the Constitution. It is not a bridge too far to ask that Congress and our military leadership conscientiously honor the promises made in that very document to its defenders.

Butch Bracknell is a career officer in the U.S. Marine Corps. The opinions expressed are his alone and not those of the Department of Defense. His email is

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