May 31, 2013
The Pentagon, Congress, and the White House have jumped on the bandwagon to crack down on sexual assault among the troops. As Michael Doyle, writing for the McClatchy Washington Bureau, put it, this means “it will get tougher for defendants; maybe, some fear, unlawfully so.” Doyle quotes Babu Kaza, a prominent military attorney: “What we are seeing now is the complete politicization of military justice in a way that would have shocked the members of Congress who passed the Uniform Code of Military Justice.”
“The Military Commander and the Law,” an authoritative source, specifies that “superior commanders must not make comments that would imply they expect a particular result in a given case or type of cases.” That didn’t stop Marine Corps Lt. Col. R.G. Palmer, serving as a military judge, from telling junior officers the following, as shown by sworn accounts of junior officers: “Congress is saying that we need more convictions.” And: “The commandant is ordering us to be more strict on criminal cases.” Then, the clincher: “We need more convictions.”
If there are specific lapses in the way these cases are being handled — if, for example, claims are dismissed without a serious investigation — these need to be addressed. But Palmer’s blanket pronouncement, in all its Star Chamber ramifications, is among the more shameful we have encountered recently. Justice cannot be served by having a preferred outcome, such as getting “more convictions,” at the expense of analyzing each case on its own facts and merits, freed of external pressures to reach a conclusion desired by a superior. Palmer’s statement, and the attitude underlying it, are diametrically opposed to fundamental notions of due process.
The bandwagon jumpers have seized upon a military survey based on answers from about 2 percent of active-duty military personnel, which led to a widely reported extrapolated conclusion that 26,000 troops may have been sexually assaulted last year.
Arthur Herman explained the “26,000” number:
It’s based entirely on a voluntary survey — and it’s wildly anti-scientific to extrapolate from a self-selected group. And only 22,792 service members opted to respond — roughly 2.2 percent of a military that’s 1 million strong.
Even more amazing, the survey never actually asked about sexual assault. Its questions centered on “unwanted sexual contact” — which can include any number of behaviors, including trying to slap someone on the buttocks, which may be vulgar or inappropriate but hardly rape (a very serious crime under the military’s Uniform Code of Justice).
The Pentagon simply used the survey’s reported “unwanted sexual contacts” to extrapolate a total number for sexual assaults for the armed forces as a whole. Do this for the same survey done in 2006, for example, and you’ve got a whopping 34,000 “assaults,” even though fewer than 3,000 sexual assaults were actually reported that year.
All the same, the 26,000 number has now become set in stone in the press and on Capitol Hill — and the calls for stopping an epidemic of “rape in the military” have been harsh and shrill.
Sometimes, the military’s “crackdown” has had the opposite effect: Gen. James F. Amos last year declared that “80 percent” of sexual assault allegations are “legitimate.” Amos can’t possibly substantiate that epiphany, of course. “I want the staff NCOs in here and I want the officers in here, the commanding officers and the sergeants major to take a hard look at how we are doing business,” Amos said at Parris Island, S.C., on April 19, 2012, a transcript shows.
Amos’ comment may have hurt sexual assault victims. In the aftermath of the comment, Marine Corps defendants in more than 60 sexual assault cases filed unlawful command influence claims. Judges in nearly all the cases that have been litigated found the appearance of unlawful command influence, providing the defendants relief on matters such as jury selection.
Politicizing sexual assault is unfair to the accused and to victims.