Should military commanders decide whether to prosecute accused sex offenders?

March 8, 2014

Saturday, March 8, 2014

Good morning:

I believe the answer is clear and unambiguous. No, they should not decide whether someone under their command should be prosecuted for a sex offense.

First, I believe decisions to prosecute someone for a crime should be made by someone who is trained in the law and the rules of evidence. Crimes consist of elements, each of which must be proven beyond a reasonable doubt. Whether a particular element can be proven beyond a reasonable doubt depends on whether there is admissible evidence to prove it.

Prosecutors have the requisite legal training and experience to make those decisions. Military commanders do not have that set of skills.

Second, a decision to prosecute or not to prosecute should be made by an impartial person who is neither biased in favor of nor prejudiced against the accuser or the accused. Military commanders usually know both the accuser and the accused. They cannot forget what they know and that means irrelevant considerations will often play a role in deciding whether to prosecute.

Third, the proof is in the pudding, so to speak. As I reported yesterday, there were over 1600 sexual-assault complaints pending in the military at the end of the fiscal year (September 30th) and no one seriously contends that sexual assaults are not a serious problem. The word “epidemic” most accurately describes the situation.

Fourth, just when the situation appeared to have reached its maximum high tide mark with the prosecution of Brigadier General Jeffrey Sinclair for sexually assaulting a young female captain with whom he had a three-year affair, we found out this week that Lt. Col. Joseph “Jay” Morse, the top lawyer in charge of the Army’s special-victims counsel (they prosecute sexual assault cases) has been accused of groping a military lawyer who worked for him.

Finally, the military has made no progress solving its horrific sexual-assault problem and it’s so bad now that even the Army’s chief prosecutor cannot keep his hands to himself.

Shame on Senator Claire McCaskill (D) and the 44 senators who voted with her to sustain a filibuster that defeated Senator Kirsten Gillibrand’s bill, which would have removed military commanders from deciding whether to prosecute sex offenses.

I think the correct answer to the question that I posed in the title is a proverbial “no brainer.”

Military commanders should not have anything to do with deciding whether to prosecute people in their command for sex offenses.

What do you think?

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