Should the Generals fight to keep UCMJ authority over Sexual Assualt and other Major Crimes?

2014-02-03T03:16:44-05:00

As we all know the military Leadership is fighting hard to retain control over cases involving Sexual Assault, harrasment and major crimes. I am beginning to wonder if maybe we are fighting to hard for something that is inconsequential in the big picture. Why shouldnt we hand that off to the civilian court systems?

As I got to thinking about this the other night, I came to the conclusion that as long as Commander's retain UCMJ authority over our regulations (Article 15 mainly), we can still use it as a tool for good order and discipline. Seldom is there a case where we take a Soldier to General Court Martial, who is found guilty and then want to retain, rehabilitate. By turning it over to the civilian courts, we increase our transparency in these cases.

It will also come with the added benefit of saving the military some money. We can still do the investigation, but then turn it over to the civilians. This will save time (we dont have to take Soldiers away from their duties) and money (we dont have to pay for expenses, it becomes a federal case). We already have a federal court system in place, we can use that. With the black eye we have received recently due to percieved mis-handling of cases, this is the perfect opportunity to relieve ourselves of that perception.

Response by CW2 Joseph Evans made Feb 3 at 2014 3:38 AM

2014-02-03T03:38:53-05:00

I like your reasoning on this issue. The fact that they have recently used a civilian court in another issue only makes me more comfortable with it.
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Response by SFC Private RallyPoint Member made Feb 3 at 2014 4:21 AM

2014-02-03T04:21:59-05:00

I like the idea of the civilian courts taking on those cases as it completely takes all biases that the military or command may have out of the equation. I would also guess that it gives the victim a better chance of seeing justice done.

Response by MSgt Private RallyPoint Member made Feb 3 at 2014 5:21 AM

2014-02-03T05:21:33-05:00

Sergeant Major,

I like your thoughts on this, but are you talking about only Sexual Assault? I would hesitate to give up all UCMJ authority to civil courts specifically because the UCMJ is the Uniform Code of Military Justice and not civil law. The UCMJ goes though revision periodically, but we still retain all the punitive articles (77-134) because there are considerations for all of these that are purely military in nature and all the members of a civil court do not necessarily understand these considerations.

Rather than give up all CM authority under the UCMJ, should we instead relinquish control of "civil" offenses like Larceny and Assault and maintain jurisdiction of military offenses such as AWOL and Dereliction? Would you trust a jury of civilians to return a verdict on a GCM that appropriately considers a military record when deciding between a BCD or Dishonorable Discharge, or whether to give hard labor without confinement in lieu of a longer sentence? Maybe civil authority over GCMs while Summary and Special CMs are maintained within the DoD?

I personally don't like that idea, but who's to say it would not be more effective. Maybe the public would hold us to a better standard being somewhat disinterested in the considerations we hold high and might use to look past a proper sentence.

Response by CW2 Private RallyPoint Member made Feb 4 at 2014 1:56 PM

2014-02-04T13:56:19-05:00

SGM,

I agree with what you and MSgt Green have said on this topic. I would definitely support it as a leader.

Response by CPT Private RallyPoint Member made Feb 4 at 2014 2:04 PM

2014-02-04T14:04:20-05:00

SGM,

I like this idea but wonder if we would run in to jurisdictional issues, i.e. who gets the case if the crime is committed on base (federal jurisdiction) versus off base (local jurisdiciton). Could we have an instance where multiple crimes are committed across both jurisdictions by the same individual (has often happened with military)? The military maintaining jurisdiciton under the UCMJ avoided all of these issues unless they specifically waived their right to try the individual. Should the DoD decide to go in this direction, it would take some careful planning and clear guidelines. Obviously, as has been mentioned, the military would retain jurisdiction on the "purely military" issues.

But I do like the idea of civilian resources handling the litigation and the military only having to process an administrative discharge on a guilty verdict.

Response by MSG Ryan C. made Feb 4 at 2014 2:31 PM

2014-02-04T14:31:20-05:00

SGM Cameron,

I have also gone back and forth on what I think the best solution would be. Putting the case in the hands of the civilian court system does offer an unbiased approach, however, with the backlog of civilian cases in the court system, it could take years before it goes to trial. Although the military court system is not the most efficient system, court martial proceedings are much quicker.

Being a SHARP Program Manager, the biggest issue I have seen with the adjudication of offenders is that the investigative process takes a long, long time. Although circumstances of the case are the main driver of how long the investigation lasts, it has been my experience that SHARP incidents that happen off post take twice as long to investigate because you have to rely on the civilian authorities and prosecutors. Even if they were able to investigate quickly, most counties are so backed up with court cases that it will not go to trial for 6+ months. All the while that offender is sitting in our ranks. I think the best solution would be to have some sort of specialized investigative team that would be able to work with both civilian and military authorities. This could help speed up investigations and also improve on the investigative process. Just my two cents.

Response by PO1 Rudy Lopez made Feb 4 at 2014 3:09 PM

2014-02-04T15:09:57-05:00

I love the discussion and I believe it is a worthy topic. However, no legal system is ever 100% justice for the right reasons. I have been privy to many of the punitive actions of the UCMJ. I have played every role from the offender, character witness, supervisor, and accuser. More often than not I have see outcomes on the punitive/NJP side being decided more so on "I feel" "I don't think" "Its better if" instead of pure facts.

I have seen a young service member come into an NJP confident, had done their homework, and brought nothing but facts and cited the regulations to support their case. In the end, the interpretation of the rules came down to "Rank." He or She who had the higher rank had the "correct" interpretation of the regulations. When it was all over I approached higher authority and asked why they decided in the way they did. Their answers were "Its about saving face" and "We needed to set an example that ???? will not be tolerated" or other trite answers.

I do believe that UCMJ authority is a great tool, a powerful tool, but also a tool that is susceptible to abuse; like anything in this world. I think big ticket items should be taken out of the commanders hands as they also have a command to run. Leave the lawyer'ing up to the lawyers. When I see a an OIC playing judge, jury, and executioner (Judge and Prosecutor) most often than not the accuses has already found guilty without ever hearing the evidence.

Response by SFC James S. made Feb 5 at 2014 12:41 AM

2014-02-05T00:41:26-05:00

SGM,

I like where you're going with your idea. When this topic first came out in the media/government, I was kind of torn on the idea of it being turned over to civilians, maybe only because I felt like it should be handled by our own.

However, as I have become certified as a SHARP Victim Advocate and I am now privy to more than I was before through training and my "duties" (still waiting on credentials), I believe it should be turned over to the civilian courts. My biggest reason is civilian courts hand out heavier (more deserving) sentences than the military in sexual assault cases. As for the care that the military provides to the survivors, I believe we are way ahead of the civilian sector. I believe Victim Advocates and SARCs should be maintained to facilitate the needed care for the survivors but as for the trial, I am all for civilian courts taking over. As for the other major crimes you address in one of your responses, I also agree that those should be handled by civilian courts.

Response by 1LT Private RallyPoint Member made Feb 5 at 2014 12:59 AM

2014-02-05T00:59:57-05:00

SGM Eric C. Providing the Generals are willing to routinely impose the death penalty originally provided for rape under UCMJ Article 15, I would support court martials designed to ultimately bring an end to rape in the modern military. Warmest Regards, Sandy

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Response by SFC Private RallyPoint Member made Mar 25 at 2014 9:43 PM

2014-03-25T21:43:58-04:00

I absolutely think it should be tried by the civilian judicial system. Our system in place has failed over and over again. This needs to be taken from the commander ASAP.

Response by SGT Craig Northacker made May 1 at 2014 8:30 PM

2014-05-01T20:30:06-04:00

Civilian jurists are often suspect in their independence and also may have political interests at heart. I think back of the shotgun raffles in Leesville where you would win the shotgun, then get busted for carrying an unregistered gun. I look at Rowan County, where the Sheriff will not take a felony complaint, and at least one of the judges has been rebuked by higher courts because of her extraordinary incompetence and outrageous behavior on the bench.
The military understands reasoning behind the judicial system. What is needed is a check and balance against the corrupt practices including Article 15 contests and personality conflicts. On the other hand, keeping MST within the unit continues to compound the problems because of conflict of interest, inherent threats, cronyism, not fully understanding the law and the context of the case, etc.

Response by LtCol Robert Quinter made May 7 at 2017 10:48 AM

2017-05-07T10:48:33-04:00

I believe this is a jurisdictional and operational question. During my service, if the offence occurred off station, responsibility for investigation, charges and prosecution was automatically ceded to the civil authorities. It was the military's responsibility to protect all involved if the civil authorities released the individuals involved and they were in a duty status during the conduct of the civil process.
If the incident occurred on base, it was a federal offence and the military , and/or other federal agencies, assumed responsibility for the process.
Now consider the same crime occurring aboard ship, or in an operational situation overseas. Does it make any sense to detach the defendant, the victim and all material witnesses from their duties, transport them to the nearest US court, along with any foreign witnesses considered material by either side, for the duration of the trial? Do we transfer additional personnel into the unit to replace individuals involved in the legal proceedings to accomplish the critical tasks for which those involved were responsible? The only justification for such operational and financial burdens to be required are if a fair and just legal process cannot be provided by the military.
In my 25 years service, things happened where I did not agree with the outcome. Having significant time as a civilian under my belt, I have observed the same results; I do not agree with everything civil authorities decide.
Proponents for civil authorities handling the legal proceedings being discussed are basing their argument on the assumption that the military is incapable or unwilling to fairly adjudicate the cases in question. I do not accept their premise and feel the military processes such cases in as fair and impartial manner as the civil authorities and has a demonstrable requirement to retain that authority.

Response by Lt Col Jim Coe made May 7 at 2017 11:18 AM

2017-05-07T11:18:10-04:00

I believe the provisions of the UCMJ should remain in tact. If the military justice system is not providing equal justice under the law, then it's an issue for military and civilian leadership in the DoD. The Federal Court system is set up to enforce what I call "civilian" Federal Law. The UCMJ contains provisions unfamiliar to the civilian community, such as "failure to go" or "failure to obey a lawful order," or "misbehavior before the enemy" that recognize the inherent limits on civil rights imposed of those who choose to serve. For example, it's not a violation of Federal Law to walk off your job at Wal-Mart because you don't like your boss. In the military we call that AWOL or possibly desertion. The more liberal minded judges in the Federal system would not hesitate to tear apart and invalidate the parts of the UCMJ that didn't match their political views.

Another impediment to using Federal Courts is application of the UCMJ outside of the United States. If a military member violates the UCMJ in a foreign country, a military court can try him or her in that country. If the UCMJ is handled only in the Federal Courts, then the military member would have to be returned to the US for trial. Major jurisdictional issues will emerge with the Federal Courts contending they have preview over the case, the military saying they have jurisdiction to conduct the investigation overseas, and the host nation possibly involved demanding the service member be tried under local law.

Response by Sgt Dennis Gray made Sep 12 at 2019 5:35 PM

2019-09-12T17:35:55-04:00

I think our military leaders should focus less on maintaining their authority and more on correcting the problem of sexual assault. While all sexual assault is bad, the idea of one service member assaulting another is totally unforgivable. I am supposed to be able to trust those in my unit with my life. Instead I have to keep one eye open to avoid rape? Cases that I have seen publicized are disgusting. A general court marshal and dishonorable for reporting a superior using his position to get sex? How does that happen? And the charge was adultry so did the officer at least share in the punishment? No matter where the case is handled, as long as military superiors protect criminals, the problem will continue.