Due Process In Military Justice During The #MeToo Movement

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12/6/25, 8:10 PM                            Due Process in Military Justice During the #MeToo Movement: Finding the Right Balance - Save Our Heroes




        Due Process in Military Justice
        During the #MeToo Movement:
          Finding the Right Balance
          By David Struwe, Former Army JAG Special Victim Prosecutor

     (This article was first published on June 11, 2018 and is reprinted with the
                               permission of the author)

 Before leaving the military and becoming a civilian litigator, I served in the Army
 as one of its twenty-four world-wide Special Victim Prosecutors. Despite having
 served as a prosecutor, I am concerned at the deterioration of Constitutional
 due process afforded to service members accused of sexual assault. Congress
 has attempted to overhaul the military justice system. I applaud Congress for
 tackling this topic of immense importance; however, although undoubtedly
 motivated by a sincere desire to assist victims of horrible crimes, Congress has
 potentially gone too far in its revisions of the protections afforded to an Accused
 by our Constitution.

 Our criminal justice system is founded on the constitutional principle that one is
 “Innocent until Proven Guilty.” Contributing to the protections given to an
 Accused in our Constitution by our Founding Fathers was their belief in the
 statement of English jurist William Blackstone: “It is better that ten guilty
 persons escape than that one innocent suffer.” Not satisfied with this ratio,
 Benjamin Franklin multiplied it by a factor of ten, when he pronounced “It is
 better 100 guilty Persons should escape than that one innocent Person should
 suffer.”

 Perhaps even more forcefully, John Adams made the impassioned plea: “It is
 more important that innocence should be protected, than it is, that guilt be
 punished,” when representing British soldiers in a politically charged trial after
 the Boston Massacre.

 Does the current Congress still agree with these foundational Constitutional
 principles when enacting legislation that limits constitutional due process? It is
 unclear.
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 Congress is correct in its belief that historically the military did not prosecute
 allegations of sexual assault as vigorously as it should. However, the reforms
 enacted by Congress in the annual National Defense Authorization Acts have
 swung the pendulum too far in the other direction, potentially depriving service
 members of their ability to obtain a fair trial. I stress that these reforms,
 individually, might have been justified.

 However, collectively, they have created a system in which an Accused is
 potentially deprived of a fair trial. The potential failure of the current system to
 afford constitutional due process to an Accused is no secret. The
 Subcommittee of the Judicial Proceedings Panel published its “Report on
 Barriers to the Fair Administration of Military Justice in Sexual Assault Cases”
 in May 2017 . This report highlighted the system’s unfairness and discussed
 the problematic reforms referred to in this article. Despite this damning report,
 Congress has taken little or no action on it.


 Examples of reforms to the military
 justice system include:
      1. No longer requiring purported victims to testify at preliminary hearings

      2. No longer allowing service members to utilize the “Good Soldier defense”
         (this defense allowed a Soldier to present evidence of his general good
          character and valorous service in combat to prove he could not have
          committed the alleged crime)

      3. Greatly expanding the definitions of what constitutes sexual assault and
         abusive sexual contact

      4. Requiring service members to receive sexual assault training that
         unfortunately is at times legally incorrect: namely, that one cannot
          consent to sexual intercourse if one has had one alcoholic beverage

      5. Making the prosecution of sexual assault allegations more difficult by
          allowing purported victims to receive transfers from unpopular duty
          stations like Kansas, to more attractive assignments like Hawaii

      6. Depriving commanders of their ability to overturn convictions when not
         convinced that the Accused was guilty

      7. Creating and giving purported victims their own independent legal
         representation (Special Victim Counsel), who in turn at times, prevent
          prosecutors and defense counsel from interviewing the alleged victim in
          preparation for trial

      8. Depriving defense attorneys the ability to obtain a purported victim’s
         mental health records, even when the constitution would otherwise
          require it.
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 These reforms, when coupled with the fact that a military Accused is already in
 a precarious position given that a military prosecutor does not need a
 unanimous jury to convict, as does a civilian prosecutor, have caused the
 scales of justice to become unbalanced, in potential violation of the
 Constitution.

 I again stress that these reforms, individually, might have been justified.
 However, collectively, they have created a system in which an Accused is
 potentially deprived of a fair trial. Commanders now refer seemingly every
 allegation of sexual assault, no matter how tenuous, to a court-martial because
 they are afraid that their careers would otherwise be terminated.

 This is not an empty threat. For example, the Senate denied Air Force Lt. Gen.
 Susan Helms’ promotion because she did not handle an allegation of sexual
 assault the way certain Senators thought she should. The decision to
 prosecute arguably weak cases is highlighted by the fact that the military often
 prosecutes cases even though civilian jurisdictions, which have concurrent
 jurisdiction over the alleged crimes, determined that no probable cause exists
 and have declined to prosecute. Commanders also continue to refer cases to
 court-martial even after neutral and detached preliminary hearing officers have
 made findings that no probable cause exists. This is problematic on variety of
 fronts, including,

      1. Potentially prosecuting an innocent service member

      2. Forcing prosecutors to potentially violate their ethical responsibility to not
         prosecute cases that are not supported by probable cause

 Perhaps Congress’ most problematic reform of constitutional protections was
 when it revised Military Rule of Evidence 513, which governs the discoverability
 of a purported victim’s mental health records. Previously, this statute did not
 allow defense counsel to obtain these records unless a judge determined that
 the defense request met one of eight enumerated exceptions. One of these
 exceptions allowed the defense to obtain mental health records, when
 “constitutionally required.” President Obama and Congress revised the statute
 to no longer include the “constitutionally required” exception. Obviously, such
 an overt, brazen deprivation of evidence that is constitutionally required to be
 supplied to the defense is itself unconstitutional.

 Recently, the Air Force court-martial of United States v. Vargas highlighted
 what has become of the military justice system. In Vargas, several prosecutors
 and Special Victim Counsel had collaborated together to somehow get what
 they perceived as a defense-oriented judge removed from hearing any cases
 involving sexual assault. Why the Air Force allowed this judge to be removed
 from sexual assault cases is unclear; however, he was ultimately removed from
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 presiding over the Vargas’ court-martial. Vargas was subsequently convicted of
 sexual assault and sentenced to 29 years of confinement. The Air Force
 appellate court, however, unsurprisingly, viewed the removal of the trial judge
 with disdain and reversed Vargas’ conviction. Thankfully, Congressional
 reforms have not yet prevented appellate courts from applying the Constitution
 and ensuring due process is afforded to an Accused.

 The #MeToo movement has justifiably engendered a passionate uprising. Let
 us not forget, however, John Adams’ passionate plea:


        “It is more important that innocence should be
                              protected,
                than it is, that guilt be punished.”




                                  About the Author: Mr. Struwe is a litigation associate
                                  with the Schnader Law Firm. He concentrates his
                                  practice on aviation matters, criminal defense, internal
                                  investigations, and insurance services. He served as a
                                  Captain in the U.S. Army Judge Advocate General’s
                                  Corps, where his roles included Prosecutor and Special
                                  Assistant U.S. Attorney and Special Victim Prosecutor .



 Save Our Heroes’ Commentary: This article by Mr. Struwe echoes what SOH
 has reported since our inception. In addition to the issues raised by the author,
 SOH has deep concern for the pandemic of false allegations of sexual
 misconduct and the vast incentives to manufacture false allegations.
 Exacerbating the problem is the complete lack of accountability for false
 accusers and for those in the investigative, prosecutorial, and chain of
 command who allow for such abuses to occur.

 Due to the volume of cases that SOH has received in just a short period of
 time, since 2012, we opine that there may be 300-400 wrongfully convicted
 service members who have been or are currently serving sentences in military
 detention facilities due to false allegations of sexual misconduct, and in the
 past 10-12 years, there may be as many as one thousand others who have
 either been falsely accused, wrongfully convicted, or who have lost their
 careers, been denied re-enlistment, experienced other negative administrative
 actions, and have even lost various freedoms that they honorably served to
 protect and defend.

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 The severity of the problem necessitates that the Department of Defense must
 immediately implement a Conviction Integrity & Accountability Unit, similar to
 the increasing trend of what many prosecutorial agencies are doing across the
 country.

 1) https://www.smerconish.com/news/2018/6/11/due-process-in-military-justice-
 during-the-metoo-movement-finding-the-right-balance6?rq=struwe

 2) http://jpp.whs.mil/Public/docs/08-
 Panel_Reports/06_JPP_Defense_Resources_Experience_Report_Final_20170424.pdf

 3) https://thehill.com/policy/defense/304283-mccaskill-blocks-generals-
 nomination-over-sex-assault-case

 4) https://www.washingtontimes.com/news/2018/mar/20/frank-vargas-military-
 court-martial-tainted-conspi/

 5) http://www.caaflog.com/2018/03/19/an-air-force-senior-trial-counsel-and-a-
 victims-counsel-conspire-to-prevent-a-military-judge-from-presiding-over-
 sexual-assault-trials-succeed-win-reversal-of-a-sexual-assault-conviction/

 6) https://www.schnader.com/attorneys/david-robert-struwe/




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