Overturned Sexual Assault Case Spurs Bill to Limit Commanders’ Tribunal Powers

Mar 12, 2013 7:14pm

A bill introduced in the House of Representatives would remove the power of military commanders to unilaterally overturn or lessen the decisions of judges or juries at courts martial under their review. The proposed legislation came as a direct response to the outrage of victim advocates and some lawmakers to the recent case of an Air Force lieutenant colonel granted clemency after a sexual assault conviction.

Rep. Jackie Speier, D-Calif., authored the bill and presented it at a press conference today with cosigner Rep. Bruce Braley, D-Iowa. At least one Republican has also cosigned, Rep. Patrick Meehan of Pennsylvania.

Speier said that if enacted, the bill would “right an egregious  wrong in our military justice system.”

“The fact that one person — one person — can overturn a punishment determined by a judge or a jury flies in the face of justice,” Speier said, adding that she believed failure to change the “primitive” legal code would add a chilling effect on victims who wish to come forward.

“The epidemic of rape and sexual assault is directly related to this broken system that hasn’t evolved to meet the standards of justice in the 21st century,” she said.

RELATED: “Invisible War” — Military Rape Victims Go to Congress

The bill is designed to restrict the powers of “convening authorities,” the term applied in military legal code to the duties of commanders. Specific to this legislation is their ability to appoint officers for roles in a court martial, tribunal, or other commission involving justice issues.

The presiding commander can also overturn the decision of such a body, should he or she disagree with its ruling. Speier’s bill would revoke that latter ability, adding another degree of finality to the outcome of such cases.

If passed, the legislation would not affect the current appeals process, a system outside convening authorities that Speier regarded as “robust.”

The bill’s backers are using the case of Lt. Col. James Wilkerson as a vessel for their perceived need  for reform. In November, Wilkerson, an F-16 pilot, was convicted by an all-male jury of aggravated sexual assault against a female contractor at Aviano Airbase in Italy.

Wilkerson, who also served as the inspector general at the base, was sentenced to a year in prison and dismissal from the service. But the decision was reversed last month by the same commander who appointed that jury, Third Air Force Chief of Staff Lt. Gen. Craig Franklin. Wilkerson has since returned to active duty.

Franklin made the change against the recommendation of his staff lawyer and instead agreed with Wilkerson’s attorney that prosecutors had not proven that he was guilty beyond a reasonable doubt. A convening authority is required for every court in the armed forces, although such clemency is rarely exercised.

The Air Force Times reports Franklin cited the unavailability of physical evidence and other factors in his reasoning. In addition, an Air Force spokesman reportedly told the paper the general had also received dozens of letters in support of Wilkerson, including one from a friend of the victim that was involved with the incident.

Speier says the use of convening authority to overturn cases outside an appellate court make a “system rigged in favor of the assailant.”

“Victims do not believe the perpetrator will be punished so they don’t report. They fear humiliation or worse, being labeled with a personality disorder and being involuntarily but honorably discharged,” she said.  “Reporting a rape is a career ender.”

The introduction of the Military Judicial Reform Act today comes as the military faces increased scrutiny over its handling of sexual harassment victims and punishment for the accused.

Last April then-Defense Secretary Leon Panetta announced additional measures to confront sex crimes in the military, what he called “a violation of everything that the U.S. military stands for.” The package included the appointment of special investigators, additional therapeutic outlets for victims, and centralized records of disciplinary proceedings.

But a recent report from the Government Accountability Office says although the Defense Department has “taken steps” to meet the meet the needs of women in the armed forces, it had lagged in providing medical and mental health services to victims of sex crimes.

According to statistics compiled by the Pentagon’s Sexual Assault Prevention and Response Office, 2,420 servicewomen reported they had been victims of sexual assault in 2011. The military estimates that number to represent a mere 13 percent of total abuse.

Of the reported crimes, 20 percent are referred to court martial, and 7 percent of those result in a conviction.

RELATED: Military Lags Assisting Victims of Sexual Assault

Documentary filmmaker Kirby Dick was among a number of victims’ advocates present for the press conference. The producer of “The Invisible War” said that in addition to reforming, the Pentagon needs to remove potential conflict of interest from the process for reporting crimes.

“They don’t seem yet to understand the victim’s perspective, particularly when it comes to reporting,” he said. “They seem to think that they can train their way out of this problem. That they only have to educate commanders to do the right thing and this problem will be solved. But that is nowhere near enough. The problem is structural and will continue for as long as victims have to report into their chain of command.”

Sen. Claire McCaskill, one of several lawmakers who have pushed the case on the Senate side, has spent at least the last two days in meetings with top brass, including Air Force Chief of Staff Gen. Mark Welsh. On Wednesday the case is expected to be discussed at the first Senate hearing in a decade dedicated to the issue of sexual assault in the military.

Last week McCaskill, D-Mo., and Sen. Jeanne Shaheen, D-N.H., wrote a letter to Defense Secretary Chuck Hagel asking him to review the case. In a response today, Hagel wrote that while he could not overrule Gen. Franklin’s decision, he had ordered the Pentagon to examine “whether it points to changes that should be considered” in the military’s legal code.

“I believe this case does raise a significant question whether it is necessary or appropriate to place the convening authority in the position of having the responsibility to review the findings and sentence of a court-martial,” Hagel said in his correspondence, “particularly prior to the robust appellate process made available by the [Uniform Code of Military Justice].”

However, during a session of the Senate Armed Services Committee last week Marine Gen. James Mattis told the members that while he was unfamiliar with the Wilkerson case at the time of the hearing, he supported the military legal system in its current form.

The U.S. Central Command chief said the powers bestowed upon convening authorities were intended to serve as a defendant’s right and a check to the jury system, should a lopsided trial arise from a tribunal.

“No court system is more subject to being characterized as a kangaroo court than one where military officers who are in command also initiate it,” Mattis said, adding he believed the U.S. Military Justice code “overwhelmingly” served justice.

“I say that because as a commander, I was not just responsible for prosecution; I was also responsible for defense,” he said. “And commanders must balance both of those if we’re to have a fair system.”

Speier, a member of the House Armed Services Committee, said she will also try to attach her measure to the next National Defense Authorization Act, the annual legislation that determines specific budget spending by the Department of Defense.

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