Some in Congress are determined to change the rules.
WASHINGTON – The tumult over how to stop sexual assaults in the U.S. military is a long way from over as Congress grapples to find legislative solutions 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.
The House has signaled it won’t take up the bill soon 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.
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 e-mails 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.
Sending wrong signal
In the e-mails, 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.
Pentagon brass opposed
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.
Gillibrand has vowed to seek another vote on her legislation, most likely in the late spring.