Evidence record
Justice Is No Longer Blind
This University of Illinois Law Review note by Heidi L. Brady examines military sexual assault reforms and argues that due process protections for accused service members were weakened as the system responded to political and public pressure.
Short Summary
The document is useful as a legal and academic source because it discusses the military justice framework, the climate around sexual assault prosecutions, unlawful command influence concerns, and proposed reforms.
This page functions as a background source for readers who want more than a personal story or advocacy summary.
Key Details
- Source / author: Heidi L. Brady
- Date: 2016
- Document type: Law review article
- Topic: Due process; military justice reform; sexual assault prosecutions
- Service branch: General military justice
Key Points
- The law review note argues that reforms responding to military sexual assault compromised accused service members' procedural due process rights.
- The note identifies specific pressure points: a victim-centric approach, broad referral of serious allegations, unlawful command influence, defense resource disadvantages, pretrial limits, and sentencing procedures.
- The note recommends stronger defense resources, including independent deployable investigators.
- The note recommends moving Article 120 disposition authority to independent prosecutors, expanding military judge authority over pretrial matters, and changing sentencing by eliminating unitary sentencing and using judges as sentencing authorities in noncapital cases.
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JUSTICE IS NO LONGER BLIND: HOW THE EFFORT TO
ERADICATE SEXUAL ASSAULT IN THE MILITARY
UNBALANCED THE MILITARY JUSTICE SYSTEM
HEIDI L. BRADY*
“[I]t’s relatively easy to stand up for beliefs when it’s the popular
thing or the in vogue thing. It’s relatively easy to be pro-victim or anti-
crime. But it can be quite another to be against the injustice done to
[the] accused, especially when they are already considered guilty by
society, by the media, by their unit and by their commander, all prior
to trial.”1
In recent years, political actors and the media have devoted sub-
stantial attention to the alarming prevalence of sexual assault in the
United States Armed Forces. As the issue has drawn the public’s ire,
Congress, the President, and the Department of Defense have re-
sponded by calling for and implementing aggressive measures to curb
military sexual assaults and punish offenders. These are laudable
goals. But, in their eagerness to solve this complex problem, the Ex-
ecutive and Legislative Branches have created another problem: in
* J.D. Candidate, 2016, University of Illinois College of Law. I would like to thank Professor
Robin Fretwell Wilson for her comments and the editors and members of the University of Illinois
Law Review for their dedication and hard work. This Note was inspired by my internship with the U.S.
Navy JAG Corps. It is dedicated to my brothers, who serve in the Army and Marine Corps, and my
grandparents, who served in the Air Force.
1. STAFF OF THE COMPARATIVE SYS. SUBCOMM., REPORT OF THE COMPARATIVE SYSTEMS
SUBCOMMITTEE TO THE RESPONSE SYSTEMS TO ADULT SEXUAL ASSAULT CRIMES PANEL 153 (May
2014), available at http://responsesystemspanel.whs.mil/Public/docs/Reports/01_CSS/CSS_Report_
Final.pdf [hereinafter REP. OF THE COMPARATIVE SYS. SUBCOMM.].
This Note draws on the reports of the congressionally mandated Response Systems to Adult
Sexual Assault Crimes Panel and its Comparative Systems Subcommittee and Role of the Commander
Subcommittee—all of which have received remarkably little public and scholarly notice. Establish-
ment of the Response Systems to Adult Sexual Crimes Panel, 78 Fed. Reg. 25,972 (Apr. 29, 2013). For
twelve months, this independent committee and its three subcommittees conducted an in-depth “re-
view and assessment of the systems used to investigate, prosecute, and adjudicate adult sexual assault
crimes in the military” with an eye toward improving system effectiveness. Id.; see STAFF OF
THE RESPONSE SYS. PANEL TO ADULT SEXUAL ASSAULT CRIMES PANEL, REPORT OF THE RESPONSE
SYSTEMS TO ADULT SEXUAL ASSAULT CRIMES PANEL 1 (June 2014), available at
http://responsesystemspanel.whs.mil/Public/docs/Reports/00_Final/RSP_Report_Final_20140627.pdf
[hereinafter REP. OF THE RESPONSE SYS. PANEL]; REP. OF THE COMPARATIVE SYS. SUBCOMM., supra,
at 247. These reports are particularly valuable because these reports attempt “to balance the need to
increase victim confidence in the system and victim rights with the rights of those accused of sexual
assault.” Id. at 2; STAFF OF THE ROLE OF THE COMMANDER SUBCOMM., REPORT OF THE ROLE OF THE
COMMANDER SUBCOMMITTEE TO THE RESPONSE SYSTEMS TO ADULT SEXUAL ASSAULT CRIMES
PANEL 109 (May 2014), available at http://responsesystemspanel.whs.mil/Public/docs/Reports/02_RoC/
ROC_Report_Final.pdf [hereinafter REP. OF THE ROLE OF THE COMMANDER SUBCOMM.].
193
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194 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
the military justice system, an accused’s due process rights have been
compromised to ensure increased and expedited convictions.
This Note examines how the military justice system prosecutes
sexual assault cases, focusing on the procedural due process problems
facing an accused in an adult rape case. Part II explains the frame-
work for analyzing cases and the climate in which they are prosecut-
ed. Part III explores overarching features of the military justice sys-
tem that are particularly problematic in the context of sexual assault
prosecutions before turning to the distinct inequities facing an accused
in the current pretrial, trial, and sentencing phases of a court-martial.
Part IV argues that the military justice system should be rebalanced
by making four changes that would enhance an accused’s due process
rights.
TABLE OF CONTENTS
I. INTRODUCTION ................................................................................. 195
II. BACKGROUND .................................................................................. 200
A. Fundamentals of the Military Justice System .......................... 200
B. The Climate in Which Military Rape Prosecutions Occur ..... 203
C. The Statutory Basis and Court-Martial Process for
Military Rape Prosecutions....................................................... 206
III. ANALYSIS .......................................................................................... 210
A. United States v. Sinclair ........................................................... 211
B. Problematic Features of the Military Justice System in
Sexual Assault Cases ................................................................. 214
1. Lack of Transparency in the Military Justice System ....... 214
2. Military Leaders Charged with Preventing and
Prosecuting Sexual Assault Have Committed Sexual
Misconduct ........................................................................... 216
3. The Military Has Adopted a Victim-Centric Approach
to Sexual Assault Cases ....................................................... 216
4. Virtually All Serious Allegations of Sexual Assault Are
Referred to Court-Martial ................................................... 218
5. The Inescapable Problem of Unlawful Command
Influence ............................................................................... 223
a. Why Unlawful Command Influence Motions
Are Prevalent ................................................................ 223
b. The Prevalence of Unlawful Command Influence
Motions in Sexual Assault Cases ............................... 225
c. Unlawful Command Influence Problems Are
Likely to Continue ....................................................... 228
6. Military Defense Counsel Face a Training, Funding,
and Experience Disadvantage ............................................ 229
C. The Unfairness to the Accused Inherent in the Current
Pretrial Process .......................................................................... 231
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1. Pre-Referral Defense Requests for Witnesses,
Depositions, and Evidence Must Go Through Trial
Counsel and the Convening Authority .............................. 231
2. Defense Counsel Have No Independent, Deployable
Investigators ......................................................................... 232
D. Trial and Sentencing Unfairness to the Accused ..................... 233
1. The Jury Pool is Often Tainted .......................................... 233
2. Sentencing Procedures Consistently Diverge from
Those in Most Civilian Jurisdictions to the Detriment
of the Accused ...................................................................... 234
IV. RECOMMENDATION ......................................................................... 238
A. Defense Organizations Must Be Adequately Resourced
with Funds and Personnel, Including Independent,
Deployable Investigators........................................................... 238
B. Giving Dispositional Authority to Independent
Prosecutors ................................................................................. 239
C. Military Judges Should Be Given the Authority to Rule on
Pretrial Matters from the Earliest of Pretrial Confinement
or Preferral of Charges ............................................................. 242
D. Unitary Sentencing Should Be Eliminated and a Military
Judge Should Be the Sole Sentencing Authority in
Noncapital Cases ....................................................................... 244
1. Unitary Sentencing Should Be Discarded ......................... 244
2. Military Judges Should Be the Sole Sentencing
Authority in Noncapital Cases ........................................... 246
V. CONCLUSION ..................................................................................... 249
I. INTRODUCTION
Sexual assault is a widespread problem in the United States mili-
tary.2 The Department of Defense (“DoD”) defines “sexual assault” as
“[i]ntentional sexual contact characterized by use of force, threats, intim-
idation, or abuse of authority or when the victim does not or cannot con-
sent.”3 The term encompasses “a broad category of sexual offenses,” in-
cluding “rape, sexual assault, aggravated sexual contact, abusive sexual
contact, forcible sodomy (forced oral or anal sex), or attempts to commit
these acts.”4
2. Major Michael J. McDonald, Rape is Rape: How Denial, Distortion, and Victim Blaming Are
Fueling a Hidden Acquaintance Rape Crisis, 2014 ARMY L. 35 (2014) (discussing “the variety of ways
in which rape occurs and the prevalence of the problem”).
3. DEP’T OF DEF., DEPARTMENT OF DEFENSE DIRECTIVE 6495.01, SEXUAL ASSAULT
PREVENTION AND RESPONSE (“SAPR”) PROGRAM 18 (Jan. 23, 2012, Incorporating Change 2, Jan. 20,
2015), http://www.dtic.mil/whs/directives/corres/pdf/649501p.pdf [hereinafter DEP’T OF DEF. DIR-
ECTIVE 6495.01].
4. Id.
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196 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
The military has long had significant incidence and prevalence rates
of sexual assault. Based on the last two5 DoD estimates,6 18,900–26,0007
active duty Service members become victims of sexual assault each year.8
Of the 1.2 million active duty servicemen, 10,400–13,900 will be sexually
assaulted; of the 203,000 active duty servicewomen, 8,500–12,100 will be
sexually assaulted. 9 The majority of these assaults have historically been
serious sexual assaults involving penetration or attempted penetration.10
These numbers are not anomalies. Twenty percent of all female
veterans report having been victims of sexual abuse during their service.11
And, in DoD surveys of active duty Service members conducted since
2006, between 4.4 percent and 6.8 percent of women, and between 0.9
percent and 1.8 percent of men, consistently report having been subject-
ed to unwanted sexual contact within the prior year.12 Making matters
worse, an estimated eighty-six percent of military sexual assault victims
5. No estimated past-year prevalence of sexual assault survey was conducted during fiscal year
2013. DEP’T OF DEF., DEPARTMENT OF DEFENSE ANNUAL REPORT ON SEXUAL ASSAULT IN THE
MILITARY: FISCAL YEAR 2013 3 (Apr. 22, 2014), available at http://www.sapr.mil/public/docs/reports/
FY13_DoD_SAPRO_Annual_Report_on_Sexual_Assault.pdf [hereinafter DEP’T OF DEF. ANNUAL
REP. ON SEXUAL ASSAULT IN THE MILITARY: FISCAL YEAR 2013].
6. These statistics may, however, be flawed. For a discussion of the shortcomings of DoD statis-
tics on sexual assault, see Tricia D’Ambrosio-Woodward, Military Sexual Assault: A Comparative Le-
gal Analysis of the 2012 Department of Defense Report on Sexual Assault in the Military: What It Tells
Us, What It Doesn’t Tell Us, and How Inconsistent Statistic Gathering Inhibits Winning the “Invisible
War”, 29 WISC. J. L., GENDER & SOC’Y 173 (2014); Lisa M. Schenck, Informing the Debate About Sex-
ual Assault in the Military Services: Is the Department of Defense Its Own Worst Enemy, 11 OHIO ST. J.
CRIM. L. 579 (2014).
7. An estimated 26,000 Service members experienced unwanted sexual contact in FY 2012. Jo-
hanna Lee, The Quest for Military Sexual Assault Reform, HARV. POL. REV., Apr. 26, 2014, available
at http://harvardpolitics.com/united-states/quest-military-sexual-assault-reform/. But see D’Ambrosio-
Woodward, supra note 6, at 175 (critiquing the DoD’s data gathering and reporting techniques and
how they are obscuring the issue of sexual assault in the military). In 2014, the Department of Defense
used an additional method of estimating sexual assaults and found that approximately 18,900–20,300
Service members had experienced unwanted sexual contact in FY 2014. DEP’T OF DEF., DEPARTMENT
OF DEFENSE OVERVIEW: FISCAL YEAR 2014 DEPARTMENT OF DEFENSE ANNUAL REPORT ON
SEXUAL ASSAULT IN THE MILITARY 1–2 (May 2015) [hereinafter DEP’T OF DEF. OVERVIEW: FISCAL
YEAR 2014].
8. This is an increase from 19,000 in 2010. James Dao, In Debate over Military Sexual Assault,
Men Are Overlooked Victims, N.Y. TIMES (June 23, 2013), http://www.nytimes.com/2013/06/24/us/in-
debate-over-military-sexual-assault-men-are-overlooked-victims.html?pagewanted=all&_r=0.
9. DEPARTMENT OF DEFENSE OVERVIEW: FISCAL YEAR 2014, supra note 7, at 1–2; Bill Briggs,
Male Rape Survivors Tackle Military Assault in Tough-Guy Culture, NBC NEWS (May 16, 2013),
http://usnews.nbcnews.com/_news/2013/05/16/18301723-male-rape-survivors-tackle-military-assault-in-
tough-guy-culture. This means that, every single day of FY 2012, 38 men and 33 women became vic-
tims of sexual assault. Id.
10. E.g., DEP’T OF DEF. ANNUAL REP. ON SEXUAL ASSAULT IN THE MILITARY: FISCAL YEAR
2013, supra note 5, at 2 (“Of the 6.1 percent of Active Duty women surveyed who indicated experienc-
ing USC [unwanted sexual contact]: 31 percent reported a completed penetration, 26 percent reported
attempted penetration, 32 percent reported unwanted sexual touching, and 10 percent did not specify
the USC experienced. Of the 1.2 percent of Active Duty men surveyed who indicated experiencing
USC: 10 percent reported a completed penetration, 5 percent reported attempted penetration, 51 per-
cent reported unwanted sexual touching, and 34 percent did not specify the USC experienced.”).
11. Joe Nocera, This War Is No Longer Invisible, N.Y. TIMES (Feb. 22, 2013), http://www.ny
times.com/2013/02/23/opinion/this-war-is-no-longer-invisible.html?_r=0.
12. DEP’T OF DEF., 2014-2016 SEXUAL ASSAULT PREVENTION STRATEGY 4 (2014), available at
http://www.sapr.mil/public/docs/reports/SecDef_Memo_and_DoD_SAPR_Prevention_Strategy_2014-
2016.pdf.
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No. 1] JUSTICE IS NO LONGER BLIND 197
never report their assaults13—considerably more underreporting than
among civilians, sixty-five percent of whom never report sexual assaults.14
Sexual assault, is of course, devastating for the victim. Having signif-
icant numbers of sexual assaults in its ranks is also a black eye on the mil-
itary’s public image. But sexual assault is far more than simply a matter
of embarrassment for the armed forces. It “imposes significant costs[,] . . .
impairs mission readiness as a whole,” and “disrupts unit cohesion.”15
Given the high numbers of sexual assaults and the seriousness of
their effects, the military has been subjected to increasing pressure to
stem the tide of sexual assaults in its ranks.16 Public outrage has been
stirred by the steady drumbeat of headlines decrying military sexual as-
saults and the military’s response to them,17 as well as award-winning
documentaries, like “The Invisible War,” that investigate “the epidemic
of rape within the U.S. military.”18 In turn, as Part II.B explains, Mem-
bers of Congress,19 the President,20 the Secretary of Defense,21 and senior
military leadership22 have eagerly joined in the chorus calling for swift
reform.
In response, the DoD formed the Sexual Assault Prevention and
Response Office and embraced a comprehensive sexual assault preven-
tion and response policy that pushes for accountability and increased re-
13. Lee, supra note 7.
14. JENNIFER L. TRUMAN & LYNN LANGTON, U.S. DEP’T OF JUSTICE, CRIMINAL
VICTIMIZATION, 2013, at 7 (2014), available at http://www.bjs.gov/content/pub/pdf/cv13.pdf (noting a
civilian underreporting rate of 65.2 percent for rape and sexual assault in 2013).
15. U.S. COMM’N ON CIVIL RIGHTS, SEXUAL ASSAULT IN THE MILITARY 2–3 (2013), available at
http://www.usccr.gov/pubs/09242013_Statutory_Enforcement_Report_Sexual_Assault_in_the_Military
.pdf.
16. Lisa M. Schenck, Sex Offenses Under Military Law: Will the Recent Changes in the Uniform
Code of Military Justice Re-traumatize Sexual Assault Survivors in the Courtroom?, 11 OHIO ST. J.
CRIM. L. 439, 439 (2014); see also infra notes 57–64 & accompanying text.
17. See, e.g., infra notes 125–56.
18. Nocera, supra note 11; Press Release, Cindegim & Docuramafilms, The Invisible War, (June
22, 2012), available at http://invisiblewarmovie.com/images/TheInvisibleWarPressKit.pdf.
19. See, e.g., Craig Whitlock, Law Makers Demand Crackdown on Sex Assault in Military,
WASH. POST (June 4, 2013), http://www.washingtonpost.com/world/national-security/military-chiefs-
balk-at-sex-assault-bill/2013/06/04/cd061cc4-cd1c-11e2-ac03-178510c9cc0a_story.html.
20. See, e.g., Findings and Conclusions re: Def. Motion to Dismiss for Unlawful Command Influ-
ence at 3, United States v. Johnson, N-M. Trial Judiciary, Haw. Jud. Cir. (June 12, 2013), available at
http://www.stripes.com/polopoly_fs/1.225981.1371237097!/menu/standard/file/johnson-uci-ruling.pdf;
see also Karen Parrish, Obama to Military Sexual Assault Victims: ‘I’ve Got Your Backs’, AM. FORCES
PRESS SERVICE (May 7, 2013, 4:39 PM), http://content.govdelivery.com/accounts/USDOD/bulletins/
7a0560; Michael D. Shear, Obama Calls for ‘Moral Courage’ at Naval Academy Graduation, N.Y.
TIMES (May 24, 2013), http://www.nytimes.com/2013/05/25/us/politics/obama-naval-academy-com
mencement.html?_r=0; Erik Slavin, Judge: Obama Sex Assault Comments ‘Unlawful Command Influ-
ence’, STARS & STRIPES (June 14, 2013), http://www.stripes.com/judge-obama-sex-assault-comments-
unlawful-command-influence-1.225974.
21. See, e.g., Michael Hill & Lolita C. Baldor, Defense Secretary Hagel Tells West Point Cadets
They Must Stamp Out Scourge of Sexual Assault, STARTRIBUNE (May 25, 2013, 1:43 PM), http://www.
startribune.com/politics/208934541.html.
22. See, e.g., Reuters, Gen. Dempsey Warns Obama of Sexual Assault ‘Crisis’, NEWSMAX (May
16, 2013, 7:58 PM), http://www.newsmax.com/Newsfront/dempsey-obama-sexual-assault/2013/05/16/id/
504956/.
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198 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
porting of sexual assaults.23 To the military’s credit, these initiatives have
been successful: both sexual assault reporting and prosecutions have in-
creased.24 For example, in fiscal year (“FY”) 2014, 6131 sexual assaults
were reported—a seventy percent increase from FY 2012.25 Commanders
were also able to take disciplinary action in seventy-six percent of these
cases—a ten percent increase from FY 2012.26
Unfortunately, aggressive efforts to eliminate sexual assault in the
military have created an often-overlooked problem for the military jus-
tice system. The due process rights of the accused have steadily deterio-
rated in sexual assault cases.27 At the same time, a heavy thumb has been
placed on the scales in favor of alleged victims.28 The result: justice is no
longer blind in military sexual assault prosecutions.
This Note focuses on the procedural due process problems con-
fronting an accused in an adult rape trial and argues that the military jus-
tice system should be rebalanced to secure an accused’s due process
rights. Part II explains the framework for analyzing adult rape cases
in the military justice system and the climate in which these cases are
prosecuted.
Part III analyzes the problems inherent in the current system. Some
of the military justice system’s overarching features are particularly prob-
lematic in sexual assault cases. The system lacks transparency,29 places
individuals who have committed sexual misconduct in charge of prose-
cuting and preventing sexual assault,30 and is exceptionally victim-
23. Mission & History, U.S. DEP’T OF DEF., SEXUAL ASSAULT PREVENTION AND RESPONSE,
http://sapr.mil/index.php/about/mission-and-history (last visited Oct. 12, 2015); see also DEP’T OF DEF.
DIRECTIVE 6495.01, supra note 3, at 18; DEP’T OF DEF., DEPARTMENT OF DEFENSE INSTRUCTION
6495.02, SEXUAL ASSAULT PREVENTION AND RESPONSE (“SAPR”) PROGRAM PROCEDURES (Mar.
28, 2013), available at http://sapr.mil/public/docs/directives/649502p.pdf [hereinafter DEP’T OF DEF.
INSTRUCTION 6495.02].
24. DEP’T OF DEF. ANNUAL REP. ON SEXUAL ASSAULT IN THE MILITARY: FISCAL YEAR 2013,
supra note 5, at 2–5.
25. DEP’T OF DEF. OVERVIEW: FISCAL YEAR 2014, supra note 7, at 2. In FY 2013, 5061 sexual
assaults were reported—a fifty percent increase from FY 2012. OFFICE OF THE SEC’Y OF DEF.,
SEXUAL ASSAULT PREVENTION AND RESPONSE OFFICE, DEPARTMENT OF DEFENSE FACT SHEET 2–3
(2014), available at http://www.sapr.mil/public/docs/reports/FY13_DoD_SAPRO_Annual_Report_
Fact_Sheet.pdf. Of these assaults, ultimately 4,660 were unrestricted reports, which are reports that
trigger an official investigation. DEP’T OF DEF., EXECUTIVE SUMMARY: DEPARTMENT OF DEFENSE
ANNUAL REPORT ON SEXUAL ASSAULT IN THE MILITARY: FISCAL YEAR 2014, at 7 (Apr. 2015);
DEP’T OF DEF. DIRECTIVE 6495.01, supra note 3, at 4. This marks a substantial increase from the 2558
unrestricted reports filed in FY 2012 and the 3678 unrestricted reports filed in FY 2013. DoD Annual
Report on Sexual Assault in the Military Finds 50 Percent Increase in Reports, SAPR SOURCE (Summer
2014), http://www.sapr.mil/public/saprsource201408.html; see also Lee, supra note 7.
26. DEP’T OF DEFENSE, ANNUAL REPORT ON SEXUAL ASSAULT IN THE MILITARY: FISCAL
YEAR 2014, at 89–91 (Apr. 2015). This is also an increase from FY 2013. Commanders were only able
to take “disciplinary action against 73 percent of the alleged offenders” in FY 2013. DoD Annual Re-
port on Sexual Assault in the Military Finds 50 Percent Increase in Reports, supra note 26.
27. See Major Elizabeth Murphy, The Military Justice Divide: Why Only Crimes and Lawyers
Belong in the Court-Martial Process, 220 MIL. L. REV. 129, 154 (2014) (“The accused is losing substan-
tial due process rights under the FY 14 [National Defense Authorization Act].”).
28. Nonetheless, some argue that the military must do much more to protect alleged victims. See,
e.g., Schenck, supra note 16.
29. Lee, supra note 7.
30. Id.
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No. 1] JUSTICE IS NO LONGER BLIND 199
centric.31 Moreover, it places military defense counsel organizations at a
training, funding, and experience disadvantage compared with trial coun-
sel (the prosecutors).32 But what makes the current system particularly
pernicious is that, as Part III.B.5 explains, at least the appearance of un-
lawful command influence—that is, denying the accused due process33 by
attempting to “coerce or, by any unauthorized means, influence the ac-
tion” of courts-martial or military tribunals34—may well be inescapable
given the clear directives of executive, legislative, and military authorities
that allegations of sexual assault must be swiftly and harshly dealt with.35
An accused also faces distinct inequities in the pretrial, trial, and
sentencing phases of a court-martial.36 Pre-referral defense requests for
witnesses, depositions, and evidence must go through trial counsel and
the convening authority. This forces defense counsel to disclose what
would otherwise be confidential information about defense witnesses and
theories, which thereby provides trial counsel with more information
more quickly than their civilian counterparts. Further, in stark contrast
with civilian practices, defense counsel has no independent, deployable
investigators.37 Additionally, the jury pool is often tainted by mandatory,
yet flawed, military sexual assault prevention programs. Finally, sentenc-
ing procedures consistently diverge from those in most civilian jurisdic-
tions to the detriment of the accused. While no one issue identified here
would itself necessarily merit the significant reform sketched in Part IV,
taken together, these issues deny due process to the accused.
Part IV suggests adjustments to the military justice system that
would rebalance the system, thereby securing the accused’s due process
rights. This Note keys in on four changes that would significantly reduce
the risk of unlawful command influence, enhance system legitimacy, and
strengthen an accused’s due process rights. Specifically, the military jus-
tice system should be rebalanced by: (1) providing defense counsel or-
ganizations with adequate funding and personnel, including independent,
deployable investigators; (2) giving dispositional authority to independ-
ent prosecutors; (3) authorizing military judges to rule on pretrial mat-
ters from the earliest of pretrial confinement or preferral of charges; and
(4) changing sentencing practices by eliminating unitary sentencing and
making military judges the sole sentencing authority in noncapital cases.
Importantly, while this Note focuses on systemic injustice to an ac-
cused, nothing here suggests that the military should stop making strong
efforts to eradicate sexual assault, protect victims’ rights, and encourage
the reporting of sexual assaults. These goals must be pursued. Neverthe-
31. See, e.g., DEP’T OF DEF. ANNUAL REP. ON SEXUAL ASSAULT IN THE MILITARY: FISCAL
YEAR 2013, supra note 5, at 110–12.
32. See infra Part II.
33. United States v. Calley, 46 C.M.R. 1131, 1149 (A.C.M.R. 1973).
34. 10 U.S.C. § 837 (2012).
35. See infra Part II.
36. See infra Part III.
37. REP. OF THE RESPONSE SYS. PANEL, supra note 1, at 8.
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200 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
less, stamping out sexual assaults need not come at the expense of treat-
ing an accused fairly. Alleged rapists are distinctly unsympathetic, but
the U.S. Constitution does not permit an alleged rapist’s due process
rights to be trammeled, regardless of how tempting it might be.38
II. BACKGROUND
This Part explains the fundamentals of the military justice system
and the climate in which military rape prosecutions occur. It then de-
scribes the statutory basis for, and court-martial process specifically ap-
plied to, military adult rape prosecutions. Throughout, it highlights chal-
lenges for protecting an accused’s due process rights.
A. Fundamentals of the Military Justice System
The military justice system is a unique legal system. Its objectives
are broader than civilian justice systems. It delegates authority in an unu-
sual manner. And those subjected to it may have weaker due process
protections.
American criminal justice systems are designed to further multiple
objectives, generally punishment, rehabilitation, deterrence, incapacita-
tion, and reintegration.39 The military justice system’s objectives, howev-
er, go beyond these and, due to the military’s functions, must balance
concerns that civilian systems need not. The military justice system is
specifically designed to “promote justice, to assist in maintaining good
order and discipline in the armed forces, to promote efficiency and effec-
tiveness in the military establishment, and thereby to strengthen the na-
tional security of the United States.”40 Good order and discipline are
therefore viewed as intertwined with military justice, “and preserving the
integrity of the system is of the utmost importance.”41
The military justice system is also unique because it gives a typically
nonlegal professional sweeping power. Military commanders are “re-
sponsible for . . . enforcing the law, protecting Soldiers’ rights, and pro-
tecting and caring for victims of crime.”42 This has important ramifica-
tions for how sexual assault allegations are handled. When an alleged
sexual assault occurs, commanders’ duties are twofold: (1) “take appro-
priate administrative and criminal action against offenders” and (2) “en-
38. U.S. CONST. amend. V.
39. JOHN J. DIIULIO, JR., RETHINKING THE CRIMINAL JUSTICE SYSTEM: TOWARD A NEW
PARADIGM, in PERFORMANCE MEASURES FOR THE CRIMINAL JUSTICE SYSTEM 6 (1993), available at
http://www.bjs.gov/content/pub/pdf/pmcjs.pdf.
40. MANUAL FOR COURTS-MARTIAL UNITED STATES, I-1 (2012 ed.).
41. Murphy, supra note 27, at 139; see generally Memorandum from Sec'y of Def., to Sec'ys of
the Military Dep'ts, et al., Integrity of the Military Justice Process (Aug. 6, 2013). For a discussion of
how the military justice system struggles to balance justice and discipline, see David A. Schlueter, The
Military Justice Conundrum: Justice or Discipline?, 215 MIL. L. REV. 1 (2013).
42. THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL, U.S. ARMY,
COMMANDER’S LEGAL HANDBOOK 7 (2015), available at https://www.jagcnet.army.mil/Sites/jagc.nsf/0/
EE26CE7A9678A67A85257E1300563559/$File/Commanders%20Legal%20HB%202015%20C1.pdf.
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sure protection of the due process rights of those who are accused of
sexual assault crimes.”43 As a result, while commanders should robustly
execute sexual assault prevention and response programs, they must also
ensure that their commands are receiving training that emphasizes the
accused’s due process rights, particularly proper “respect for the pre-
sumption of innocence.”44
The due process rights of military personnel are not, however, nec-
essarily the same as the due process rights of civilians.45 This is because
Article I, Section 8 of the U.S. Constitution gives Congress the authority
to regulate the armed forces.46 Congress therefore has “plenary control
over rights, duties, and responsibilities in the framework of the Mili-
tary Establishment, including regulations, procedures, and remedies re-
lated to military discipline” and “primary responsibility for the delicate
task of balancing the rights of servicemen against the needs of
the military.”47 Consequently, while Congress is subject to Due Process
Clause requirements when legislating in military affairs and the “Clause
provides some measure of protection to defendants in military proceed-
ings,” courts give the highest deference to congressional determinations
in the military context.48 The standard applied to due process challenges
makes it abundantly clear that deference is at its apogee in this area:
“whether the factors militating in favor of [the claimed due process right]
are so extraordinarily weighty as to overcome the balance struck by
Congress.”49 Accordingly, Service members asserting a due process right
that Congress is loath to protect50 will find courts less solicitous of their
claims than courts would be if Service members were not subject to the
Uniform Code of Military Justice (“U.C.M.J.”).51
But while Service members’ due process rights will likely be given
less robust protection than civilians’ due process rights, the Due Process
Clause is still an important check on congressional power. Courts will not
stand by idly while Congress runs roughshod over Service members’
basic due process rights. The U.S. Supreme Court has clarified that Ser-
vice members are entitled to “a fair trial in a fair tribunal.”52 It has also
reminded the lower courts that, when faced with challenges that severely
test “our Nation’s commitment to due process[,] . . . we must preserve
our commitment at home to the principles for which we fight abroad.”53
43. REP. OF THE ROLE OF THE COMMANDER SUBCOMM., supra note 1, at 2.
44. Id.
45. Rostker v. Goldberg, 453 U.S. 57, 67 (1981).
46. Weiss v. United States, 510 U.S. 163, 176–77 (1994) (citations omitted).
47. Id. at 177 (citations and internal quotation marks omitted).
48. Id. at 176–78 (citations omitted).
49. Id. at 177–78 (citations and internal quotation marks omitted).
50. See Part IV.B.
51. Id. at 177.
52. Id. at 178 (citations and internal quotation marks omitted).
53. Hamdi v. Rumsfeld, 542 U.S. 507, 532 (2004); see Kennedy v. Mendoza-Martinez, 372 U.S.
144, 164–65 (1963). Indeed, “in the name of national defense,” courts must not “sanction the subver-
sion of one of those liberties . . . which makes the defense of the Nation worthwhile.” Hamdi, 542 U.S.
at 532 (quoting United States v. Robel, 389 U.S. 258, 264 (1967)).
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202 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
Service members’ due process rights are also protected by prohibi-
tions on unlawful command influence. Unlawful command influence oc-
curs when any person subject to the U.C.M.J. attempts to “coerce or, by
any unauthorized means, influence the action” of courts-martial or mili-
tary tribunals and is prohibited by Article 37 of the U.C.M.J.54 Military
appellate courts are sensitive to unlawful command influence, which “is
to be condemned as a denial of military due process”55 and “a corruption
of the truth-seeking function of the trial process.”56 Since unlawful com-
mand influence is the “mortal enemy of military justice,” courts must
zealously guard against both actual and apparent unlawful command in-
fluence.57 This is because “[t]he mere appearance of unlawful command
influence may be ‘as devastating to the military justice system as the ac-
tual manipulation of any given trial.’”58
The test for the appearance of unlawful command influence is less
arduous than the test for unlawful command influence. It is an objective
test “focus[ing] upon the perception of fairness in the military justice sys-
tem as viewed through the eyes of a member of the public.”59 This test is
satisfied if “an objective, disinterested observer, fully informed of all the
facts and circumstances, would harbor a significant doubt about the fair-
ness of the proceeding.”60 Even DoD civilian leadership can create a un-
lawful command influence problem through their policy statements.61
54. 10 U.S.C. § 837 (2012).
55. United States v. Calley, 46 C.M.R. 1131, 1149 (A.C.M.R. 1973).
.
56 United States v. Thomas, 22 M.J. 388, 393–94 (C.M.A. 1986).
57. Id. at 393; United States v. Howell, NMCCA 201200264, 2014 CCA LEXIS 321, at *27
(N.M.C. Ct. Crim. App. May 22, 2014) (quoting United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F.
2006)) (“Congress and (the Court of Appeals for the Armed Forces) are concerned not only with elim-
inating actual unlawful command influence, but also with ‘eliminating even the appearance of unlawful
command influence at courts-martial.’”); see United States v. Rodriguez, 16 M.J. 740, 742 (A.F.C.M.R.
1983) (“It is a bedrock principle of military justice that every person tried by court-martial is entitled
to have his guilt or innocence, and his sentence, determined solely upon the evidence presented at tri-
al, free from all unlawful influence exerted by military superiors or others.”).
58. Howell, 2014 CCA LEXIS 321, at *26 (quoting United States v. Ayers, 54 M.J. 85, 94–95
(C.A.A.F. 2000)).
59. Id. at *27 (quoting Lewis, 63 M.J. at 415).
60. Id. at *27–28. (quoting Lewis, 63 M.J. at 415).
61. United States v. Hagen, 25 M.J. 78, 87–88 (C.M.A. 1987) (Sullivan, J., concurring) (“A typi-
cal general or flag officer exercising convening-authority power will almost always have superiors,
higher-ranking military officers or civilians in policy positions. These superiors as well must refrain
from sending signals down the chain of command as to expected results in a criminal case. Real or per-
ceived policy considerations in the operation of military departments have no place in determining the
guilt or innocence of an individual charged with a crime under the laws of our land. Superior com-
manders and staff officers, as well as military or civilian legal officers, must never, directly or indirect-
ly, interfere with a convening authority's exercise of his lawful duty. The convening authority must
make his or her own decision on the case. It is not only unprofessional but a fraud on the system for a
superior to ‘send the word’ down to a convening authority as to a desired result in a criminal case
which will please the leadership of our armed forces.”); Findings and Conclusions re: Def. Motion to
Dismiss for Unlawful Command Influence at 7, United States v. Johnson, N-M. Trial Judiciary, Haw.
Jud. Cir. (June 12, 2013), available at http://www.stripes.com/polopoly_fs/1.225981.1371237097!/
menu/standard/file/johnson-uci-ruling.pdf (noting that the Navy-Marine Corps Court of Criminal Ap-
peals has “heeded ‘the admonitions from the CAAF about the potential insinuation of [unlawful
command influence] by the civilian leadership of the Department” and reviewed the actions of the
Secretary for apparent unlawful command influence”).
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No. 1] JUSTICE IS NO LONGER BLIND 203
A finding of actual or apparent unlawful command influence can re-
sult in significant remedial measures. For example, the highest military
appellate court “has set aside sentences when it has found that
statements of policy impinged on the independence of court-martial
personnel.”62
B. The Climate in Which Military Rape Prosecutions Occur
Military rape prosecutions occur in a climate in which military and
civilian leadership are aggressively seeking to eradicate sexual assault.
The DoD has implemented a Sexual Assault Prevention and Response
Strategic Plan that each branch must comply with.63 The plan is designed
to “ensure that every Servicemember understands that sexist behaviors,
sexual harassment, and sexual assault are not tolerated, condoned, or ig-
nored” so that a culture of “dignity and respect” can be cultivated.64 The
Joint Chiefs of Staff have ordered leaders at every level of the military to
“integrate the intent, lines of effort and tenets of this Strategic Direction
as a part of [their] daily command routines and activities.”65
Congress is also actively seeking to increase reporting and prosecu-
tion of sexual assaults.66 Since the 2009 National Defense Authorization
Act (“NDAA”), Congress has enacted over forty-seven provisions re-
forming the U.C.M.J. and otherwise directly addressing sexual assault in
the armed forces.67 In order to improve the effectiveness of the military
justice system’s response to sexual assault, Congress has even required
that the Secretary of Defense establish a Response Systems Panel to in-
dependently assess and report to the Armed Services Committees of the
U.S. House of Representatives and the U.S. Senate on how the military
justice system investigates, prosecutes, and adjudicates adult sex crimes.68
Members of the military chain of command have made it clear that
they, too, have zero tolerance for sexual assault in the military. Because
defense counsel have filed many motions asserting unlawful command
influence as a result of these comments, as Part III.B.5 explains, some of
the more allegedly problematic statements are discussed below.
62. Id. at 7 (discussing United States v. Fowle, 22 C.M.R. 139, 141 (C.M.A. 1956) and United
States v. Estrada, 17 C.M.R. 287 (C.M.A. 1957)).
63. Memorandum from Sec’y of Def. Chuck Hagel on Sexual Assault Prevention and Response
to the Secretaries of the Military Departments, Chairman of the Joint Chiefs of Staff, Under Secretary
of Defense for Personnel and Readiness, Chiefs of the Military Services, Chief of the National Guard
Bureau, and General Counsel of the Dep’t of Def. 1–3 (May 6, 2013), available at http://www.sapr.
mil/public/docs/reports/SecDef_SAPR_Memo_Strategy_Atch_06052013.pdf.
64. Id. at 1.
65. DEP’T OF DEF., SEXUAL ASSAULT PREVENTION AND RESPONSE STRATEGIC PLAN 4 (Apr.
30, 2013), available at http://www.sapr.mil/public/docs/reports/SecDef_SAPR_Memo_Strategy_Atch_
06052013.pdf.
66. 160 CONG. REC. 1336 (daily ed. Mar. 6, 2014) (statement of Sen. Harry Reid).
67. Id. (statement of Sen. James Inhofe).
68. National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239, § 576(a)(1),
126 Stat. 1758-63 (2013).
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President Barack Obama, the Commander-in-Chief,69 told military
sexual assault victims:
The bottom line is: I have no tolerance for this . . . [s]o I don’t want
just more speeches or awareness programs or training but ultimate-
ly folks look the other way. If we find out somebody’s engaging in
[sexual assault], they’ve got to be held accountable—prosecuted,
stripped of their positions, court-martialed, fired, dishonorably dis-
charged. Period. It’s not acceptable.70
Similarly, recent Secretaries of Defense have repeatedly empha-
sized that they are closely monitoring how sexual assaults are handled
and will do everything they can to eradicate them. For example, in May
2013, Secretary Chuck Hagel stated that “[i]t’s not good enough to say
we have a zero tolerance policy (when it comes to sexual assault in the
armed forces) . . . . I want to know how it’s being done, and I want to
know everything about it.”71 Because “[s]exual harassment and sexual as-
sault in the military are a profound betrayal—a profound betrayal—of
sacred oaths and sacred trusts[,] . . . [t]his scourge must be stamped out.
We are all accountable and responsible for ensuring that this happens.”72
Further, in a letter to Senator Barbara Boxer in March 2013, Secretary
Hagel announced that he was “committed to doing everything [he] can to
stop sexual assault in the armed forces.”73 Secretary of Defense Leon
Panetta, Secretary Hagel’s immediate predecessor, made similar
statements.74
Senior military leaders have eagerly joined the push to eradicate
sexual assault in the military. For example, on April 19, 2012, General
James F. Amos, the Commandant of the Marine Corps and a member of
the Joint Chiefs of Staff, stated:
69. U.S. CONST. art. II, § 2, cl. 1.
70. Findings and Conclusions re: Def. Motion to Dismiss for Unlawful Command Influence at 3,
United States v. Johnson, N-M. Trial Judiciary, Haw. Jud. Cir. (June 12, 2013), available at http://www.
stripes.com/polopoly_fs/1.225981.1371237097!/menu/standard/file/johnson-uci-ruling.pdf (citing Mi-
chael O’Brien, Obama: ‘No Tolerance’ for Military Sexual Assault, NBC News (May 7, 2013, 3:15 PM),
http://nbcpolitics.nbcnews.com/_news/2013/05/07/18107743-obama-no-tolerance-for-military-sexual-
assault); see also Parrish, supra note 20; Shear, supra note 20; Slavin, supra note 20.
71. Jennifer Hlad, Hagel: Military Has in Many Ways Failed on Sexual Assault, STARS & STRIPES
(May 17, 2013), http://www.stripes.com/news/us/hagel-military-has-in-many-ways-failed-on-sexual-
assault-1.221358.
72. Hill & Baldor, supra note 21.
73. Findings and Conclusions re: Def. Motion to Dismiss for Unlawful Command Influence at 1,
United States v. Johnson, N-M. Trial Judiciary, Haw. Jud. Cir. (June 12, 2013).
74. Secretary Panetta stated that “General Dempsey [the Chairman of the Joint Chiefs of Staff]
and I consider [sexual assault] a serious problem that needs to be addressed” and noted that “com-
manders must hold offenders appropriately accountable” on April 16, 2012. Id. at 2. On June 29, 2012,
he said that “[t]he command structure from the chairman on down have made very clear to the leader-
ship in this department that [sexual assault] is intolerable and it has to be dealt with . . . . [W]e have
absolutely no tolerance for any form of sexual assault.” On April 17, 2012, he declared: “The most
important thing we can do is prosecute the offenders, deal with those who have broken the law and
committed this crime. And if we do that then we can begin to deal with this issue—not only prosecute
those that are involved, but more importantly send a signal that this is not a problem that we are going
to ignore in the United States military.” Id.
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We have got Marines that are predators . . . . I see it across the Ma-
rine Corps. . . . we have got an officer that has done something ab-
solutely disgraceful and heinous and . . . we elect to retain him. . . .
Why would I want to retain someone like that? I see the same thing
with staff NCOs. . . . I see this stuff in court-martials [sic], I see it in
the behavior and just for the life of me I can’t figure out why we
have become so ecumenical? Why we have become so soft? Where
we’re gonna [sic] keep a sergeant that absolutely doesn’t belong in
the United States Marine Corps. Why would we need to do that?
And the answer is we don’t. . . . And 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 do business. If you
have a Marine that’s not acting right, you’ve got a Marine that de-
serves to leave the Corps, then get rid of them; it is as simple as
that.75
The Chairman of the Joint Chiefs of Staff, General Martin Demp-
sey, has made similar statements.76 In a meeting between President
Obama, Secretary of Defense Hagel, and the Chiefs of Staff to discuss
sexual assaults, the President reported that the chiefs
“care about this, and they’re angry about it, and I heard directly
from all of them that they’re ashamed by some of what’s hap-
pened . . . . They all understand this is a priority and we will not stop
until we see this scourge from what is the greatest military in the
world eliminated.”77
75. United States v. Easterly, NMCCA 201300067, 2014 WL 341938 at *3–4 (N.M.C. Ct. Crim.
App. Jan. 31, 2014).
76. Miranda Petersen, Miranda Petersen Email: Attachment 5—Unlawful Command Influence,
Comment to Public Comments, RESPONSE SYS. TO ADULT SEXUAL ASSAULT CRIMES PANEL (Sept. 3,
2013), available at http://responsesystemspanel.whs.mil/public/docs/Public_Comment_Unrelated/03-
Sep-13/06_Email_POD_DSD_Att5_UnlawfulCmdInfl_20130917.pdf.
77. Reuters, supra note 22. Further examples of a wide array of military leaders making strong
comments on sexual assault include the following: (1) Secretary of the Navy Ray Mabus stressed on
May 3, 2011, that it was important to “hol[d] offenders accountable” and emphasized Navy personnel’s
role in “‘[e]nding this scourge’ of sexual assaults in the Navy and Marine Corps.” Findings and Con-
clusions re: Def. Motion to Dismiss for Unlawful Command Influence at 2, United States v. Johnson,
N-M. Trial Judiciary, Haw. Jud. Cir. (June 12, 2013). (2) On April 1, 2012, Admiral Jonathan Green-
ert, Chief of Naval Operations, “stressed that it is ‘important that we support sexual assault victims
and hold offenders accountable,’” calling “sexual assault ‘unacceptable’ and urg[ing] that it not be tol-
erated.” Id. (3) On June 27, 2012, Admiral Greenert stated that the sexual assault statistics “both-
er[ed] the hell out of me,” and, on April 3, 2013, he again “urged commanders to ‘hold people ac-
countable’ for sexual assault.” Id. at 3. (4) On January 8, 2013, Admiral Greenert and Secretary Mabus
declared “that they were disappointed and angry over continued incidents of sexual assault.” Id.
(5) On March 14, 2013, Force Master Chief for Navy Recruiting Command Earl Gray stated that
“‘[f]alse allegations of sexual assault are 3% (per NCIS data) which means 97% of allegations are
true[,]’” and subsequently “entreated Navy leadership to prevent ‘revictimization’ and to ‘ensure
transfer requests are processed within 72 hours.’” Id.
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C. The Statutory Basis and Court-Martial Process for Military Rape
Prosecutions
Sexual assaults in the military are charged under Article 120 of the
U.C.M.J.78 Congress has, however, struggled to draft a workable statute.79
The 2006 iteration of Article 120 was particularly disastrous,80 managing
to include unconstitutional burden shifting,81 create a legal impossibility,82
and acquire a reputation as “neither a model of clarity nor a model stat-
ute.”83 As a result, Congress changed Article 120 to its current form in
2012.84 Article 120 defines rape as follows:
(a) Rape.—Any person subject to this chapter who commits a sexu-
al act upon another person by—(1) using unlawful force against that
other person; (2) using force causing or likely to cause death or
grievous bodily harm to any person; (3) threatening or placing that
other person in fear that any person will be subjected to death,
grievous bodily harm, or kidnapping; (4) first rendering that other
person unconscious; or (5) administering to that other person by
force or threat of force, or without the knowledge or consent of that
person, a drug, intoxicant, or other similar substance and thereby
substantially impairing the ability of that other person to appraise
or control conduct; is guilty of rape and shall be punished as a
court-martial may direct.85
A distinct court-martial process is followed for adult rapes charged
under Article 120. Once an alleged assault has occurred, an alleged vic-
tim has two reporting options: (1) filing a restricted report; or (2) filing
an unrestricted report.86 If alleged victims choose to file an unrestricted
report, they disclose that they were sexually assaulted, but they have no
78. UNIFORM CODE OF MILITARY JUSTICE § 45 art. 120 (2012), available at http://www.sapr.mil/
public/docs/ucmj/UCMJ_Article120_Rape_Sexual_Assault.pdf.
79. See generally Major Mark D. Sameit, When a Convicted Rape Is Not Really a Rape: The Past,
Present, and Future Ability of Article 120 Convictions to Withstand Legal and Factual Sufficiency Re-
views, 216 MIL. L. REV. 77 (2013).
80. See Colonel R. Peter Masterton, Annual Review of Developments in Instructions, 2013 ARMY
L. 1, 4 (2013).
81. United States v. Prather, 69 M.J. 338, 345 (C.A.A.F. 2011); see also United States v. Medina,
69 M.J. 462, 464 (C.A.A.F. 2011) (citation omitted).
82. Prather, 69 M.J. at 345 (stating that the 2006 Article 120 created a legal impossibility as a
result of having two burden shifts: “The problem with the provision is structural. If the trier of fact has
found that the defense has proven an affirmative defense by a preponderance of the evidence, it is
legally impossible for the prosecution to then disprove the affirmative defense beyond a reasonable
doubt and there must be a finding of not guilty. There are simply no instructions that could guide
members through this quagmire, save an instruction that disregards the provision.”).
83. United States v. Neal, 68 M.J. 289, 305 (C.A.A.F. 2010) (Ryan, J., concurring in part and dis-
senting in part). See Brigadier General (Ret.) Jack Nevin & Lieutenant Joshua R. Lorenz, Neither A
Model of Clarity Nor A Model Statute: An Analysis of the History, Challenges, and Suggested Changes
to the "New" Article 120, 67 A.F. L. REV. 269 (2011), for an in-depth discussion of the 2006 statute’s
shortcomings.
84. Jim Clark, 2012 Emerging Issues 6423, Clark on 2012 UCMJ Article 120, Effective 28 June
2012, LEXISNEXIS (2012).
85. 10 U.S.C. § 920(a) (2012).
86. DEP’T OF DEF. DIRECTIVE 6495.01, supra note 3, at 4, 16, 18.
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expectations of confidentiality.87 Alleged victims filing an unrestricted
report will receive medical treatment and counseling and be assigned a
Sexual Assault Response Coordinator (“SARC”) and a Sexual Assault
Prevention and Response Victim Advocate (“SAPR VA”).88 Individuals
filing unrestricted reports must report the alleged assault to law en-
forcement.89 An official investigation into the alleged assault can then be
initiated.90
If, however, alleged victims choose to file a restricted report, they
confidentially disclose that they were sexually assaulted.91 They will still
receive medical treatment and counseling and will be assigned a SARC
and SAPR VA.92 But, a report will not be made to law enforcement, and
an official investigation will not be triggered absent narrow exceptions93
or an alleged victim’s consent.94 Accordingly, disciplinary proceedings,
including a court-martial, will almost never be initiated unless an alleged
victim files an unrestricted report.
Once an alleged victim has made an unrestricted report of sexual
assault, any person subject to the U.C.M.J. may prefer charges. This
“preferral of charges” formally initiates charges against an accused, start-
ing the court-martial process; it is similar to pressing charges or swearing
95
out a complaint in a civil jurisdiction. To prefer charges, an authorized
person signs charges and specifications under oath before a commis-
sioned officer, swearing that he or she either has personal knowledge of
the alleged offense or has investigated the alleged offense and believes
that the charges and specifications are true.96
A convening authority—a commissioned officer in a command posi-
tion,97 who is generally either a special or general courts-martial conven-
ing authority—will then appoint an investigating officer (“IO”) to con-
duct a thorough, pretrial hearing (an “Article 32 hearing”) to investigate
87. See id. at 4, 18.
88. Id. at 4.
89. Id. at 21.
90. Id. at 4.
91. Id. at 5.
92. Id.
93. There are five exceptions that allow a restricted report to be disclosed: (1) the alleged victim
consents to the disclosure in writing; (2) disclosure is “[n]ecessary to prevent or mitigate a serious and
imminent threat to the health or safety of the victim or another person”; (3) disclosure is “necessary to
process duty or disability determinations for Service members”; (4) discoslure is “[r]equired for the
supervision of coordination o[r] coordination of direct victim treatment or services”; and (5) disclosure
is “[o]rdered by a military official . . ., Federal or State judge, or [is] required by a Federal or State
statute or applicable U.S. international agreement.” DEP’T OF DEF. INSTRUCTION 6495.02, supra note
23, at 30–31.
94. DEP’T OF DEF. DIRECTIVE 6495.01, supra note 3, at 5.
95. Military Justice Fact Sheets: The Military Justice System (The Uniform Code of Military Jus-
tice and Manual for Courts-Martial, Headquarters Marine Corps, http://www.hqmc.marines.mil/
Portals/135/MJFACTSHTS%5B1%5D.html (last visited on Nov. 17, 2015).
96. MANUAL FOR COURTS-MARTIAL, supra note 40, at 307(b). All Rules for Courts-Martial
(“R.C.M.”) may be found in the Manual for Courts-Martial.
97. Id. at 103(6).
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208 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
the charges.98 Congress has, however, recently restricted the scope of an
Article 32 hearing. Congress has primarily done so by redesignating the
Article 32 hearing as a “preliminary hearing” instead of an “investiga-
tion,” relieving alleged victims of the necessity of testifying, and giving
alleged victims the right to obtain a transcript of the hearing.99
After an Article 32 hearing has concluded, the IO will provide the
initial disposition authority with a report of her conclusions and a rec-
ommended disposition in the case.100 Unlike civilian jurisdictions, the
provability of charges against an accused is not considered in deciding
whether the minimum threshold to charge a Service member is met.101
Convening authorities have disposition authority to dismiss charges
or refer them for nonjudicial punishment, administrative action, or court-
martial.102 Allegations of rape or serious sexual assault are only triable by
a general court-martial, which limits convening authorities with disposi-
tion authority to the small number of typically flag or general officers
that are general courts-martial convening authorities (“GCMCA”) au-
thorized by Article 22.103 Consequently, prior to referring any charge to
trial by general court-martial, the GCMCA’s staff judge advocate
(“SJA”) must review the report and give the GCMCA written advice on
the disposition decision.104 The GCMCA alone possesses the discretion to
refer the charge to a general court-martial and may not consider the ac-
cused’s character and military service when making a disposition
decision.105
The current system highly incentivizes referring serious sexual as-
saults to a general court-martial. If the GCMCA decides not to refer
charges against the accused to trial by court-martial, he or she must at-
tach a written statement justifying the decision.106 If the GCMCA does
not refer charges to court-martial and the SJA recommended referral,
Service Secretaries (e.g., the Secretary of the Navy) will review the
98. U.C.M.J. art. 32; MANUAL FOR COURTS-MARTIAL, supra note 40, at 405; United States v.
McDowell, Misc. Dkt. No. 2013-28, 2014 WL 1323102, at *4 (A.F. Ct. Crim. App. Mar. 13, 2014) (quot-
ing United States v. Samuels, 27 C.M.R. 280, 286 (C.M.A. 1959)) (stating that the Article 32 investiga-
tion “operates as a discovery proceeding for the accused and stands as a bulwark against baseless
charges”).
99. National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1702(a), 127
Stat. 954–55 (2014).
100. MANUAL FOR COURTS-MARTIAL, supra note 40, at 405.
101. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 28.
102. See U.C.M.J. art. 15; MANUAL FOR COURTS-MARTIAL, supra note 40, at 306, 401; Defense
Services FAQ, U.S. NAVY JUDGE ADVOCATE GENERAL’S CORPS, http://www.jag.navy.mil/legal_
services/legal_services_faqDEFENSE.htm (last visited Oct. 12, 2015).
103. National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1705, 127
Stat. 959 (2014); Memorandum from Sec’y of Def. Leon Panetta on Withholding Initial Disposition
Authority Under the Uniform Code of Military Justice in Certain Sexual Assault Cases to the Sec’ys
of the Military Dep’ts, Chairman of the Joint Chiefs of Staff, Commanders of the Combatant Com-
mands, and Inspector Gen. of the Dep’t of Def. (Apr. 20, 2012), available at http://www.dod.gov/dod
gc/images/withhold_authority.pdf.
104. MANUAL FOR COURTS-MARTIAL, supra note 40, at 406.
105. National Defense Authorization Act for Fiscal Year 2014 § 1708; MANUAL FOR COURTS-
MARTIAL, supra note 40, at 407.
106. National Defense Authorization Act for Fiscal Year 2014 § 1744(e)(6).
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No. 1] JUSTICE IS NO LONGER BLIND 209
GCMCA’s decision.107 If the SJA recommends not referring charges to
court-martial and the GCMCA agrees, the GCMCA’s next superior
commanding officer, who must also be a GCMCA of at least grade O-7
(brigadier general or rear admiral), will review the decision.108 Proposed
federal legislation, such as the Victim’s Protection Act of 2014 (“VPA”),
would also mandate Secretarial review if senior trial counsel (the prose-
cutor) disagrees with a GCMCA’s decision to not refer a case to court-
martial.109 Finally, VPA § 3 and the House markup of the 2015 NDAA
would require the Secretaries of the Military Departments to consider
commanding officers’ “attitudes toward handling sexual assault allega-
tions” when assessing their job performance.110
A convening authority also plays an extensive role in pretrial mat-
ters. Military defense counsel must submit requests for experts, witness-
es, depositions, documents, and other evidence through trial counsel and
the SJA to the convening authority.111 Trial counsel has no comparable
requirement.112 Defense counsel may only submit such requests to a mili-
tary judge after a case has been referred and the convening authority has
denied the request.113 An ex parte procedure, wherein trial counsel would
not be present, is not available.114 Moreover, unlike trial counsel, defense
counsel have no independent, deployable investigators, forcing defense
counsel to request investigators from the convening authority—requests
that are typically denied by both convening authorities and military judg-
es.115 Finally, the convening authority affects the trial because he or she
controls who may potentially become a member of the court-martial
panel—the civilian equivalent of choosing the jury pool.116
At the conclusion of a trial, members determine a verdict by voting
through a secret ballot. Generally, only a two-thirds vote is needed to
convict an accused in noncapital cases,117 although a three-fourths vote is
necessary if the punishment is confinement for more than ten years or
life.118 A sentence is determined almost immediately after a verdict is
rendered.119 If the accused chose trial by members, or if the accused
pleaded guilty and agreed to member sentencing, the accused will have
her sentence determined by the members.120 But, if he or she opted for a
107. Id. § 1744(c).
108. Id. § 1744(d); see Memorandum from Secretary of Defense Leon Panetta, supra note 103.
109. Victim Protection Act of 2014, S. 1917, 113th Cong. (2014); National Defense Authorization
Act for Fiscal Year 2014 § 1744(d); see Memorandum from Secretary of Defense Leon Panetta, supra
note 103.
110. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 43–44 n.13.
111. Id. at 29.
112. Id.
113. Id.
114. Id.
115. Id. at 26.
116. This is because the convening authority is the one who details the members of the court-
martial panel. MANUAL FOR COURTS-MARTIAL, supra note 40, at 503.
117. Id. at 921.
118. Discussion of R.C.M. 1004(B), MANUAL FOR COURTS-MARTIAL, supra note 40, at II-135.
119. See MANUAL FOR COURTS-MARTIAL, supra note 40, at 1001(a)(2).
120. REP. OF THE RESPONSE SYS. PANEL, supra note 1, at 138.
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210 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
bench trial or pleaded guilty and agreed to sentencing by a military
judge, the military judge will determine the sentence.121 An accused may
not choose trial by members and sentencing by a military judge.122 A wide
variety of potential sentences are possible, including reprimand, death,
forfeiture of pay and allowances, fines, reduction in pay grade, restriction
to specified limits, confinement, hard labor without confinement, puni-
tive separation, and a bad conduct discharge.123 But dishonorable dis-
charge is mandatory for rape convictions.124 A unitary sentence will be
given, meaning that the sentencing authority will give one overall sen-
tence, not a sentence per each charged count.125
While it has lavished considerable control in the court-martial pro-
cess on the convening authority, Congress has recently restricted the
convening authority’s power in the one area where it benefitted the ac-
cused. Once a sentence is handed down in a rape case, the convening au-
thority may no longer set aside a finding of guilty or reduce it to a finding
of guilty on a lesser included offense, which the convening authority his-
torically had the power to do.126
As for the appeals process, sentences that result in punitive dis-
charge or at least one year of confinement are automatically reviewed by
an appellate court.127 Other cases receive automatic review by judge ad-
vocate generals (“JAGs”).128
III. ANALYSIS
This Part explains the implications of an accused being prosecuted
in this system and climate. As Part II demonstrated, a Service member
accused of rape will be charged in a system that balances protections for
the accused with other considerations, provides the convening authori-
ty—typically a nonlegal professional—with sweeping powers over the
court-martial process, and gives fewer due process protections than a ci-
vilian would likely receive. The Service member will be charged under a
statute that Congress has been forced to reword repeatedly, only to have
it be stricken down.129 And the Service member will find that, once
charges have been initiated, the system virtually guarantees that he will
face a general court-martial, regardless of the strength of the evidence
121. Id.
122. Id.
123. MANUAL FOR COURTS-MARTIAL, supra note 40, at 1003, 1004.
124. National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239, § 572(a)(2),
126 Stat. 1753 (2013).
125. MANUAL FOR COURTS-MARTIAL, supra note 40, at 1003(c)(1)(C).
126. National Defense Authorization Act for Fiscal Year 2014 § 1702(b), Pub. L. No. 113-66, 127
Stat. 955 (2013); Zachary D. Spilman, 2014 Emerging Issues 7217, Zachary D Spilman: Analysis of the
New Article 60(c), EMERGING ISSUES, available at LexisNexis.
127. See MANUAL FOR COURTS-MARTIAL, supra note 40 at 1110; REP. RESPONSE SYS. PANEL,
supra note 1, at 139.
128. MANUAL FOR COURTS-MARTIAL, supra note 40, at 1112.
129. See generally Sameit, supra note 79.
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against him. This entire process will take place in an environment that is
primed to ignore injustice to an accused.130
Part III begins with a case example illustrating the inequities facing
Service members accused of sexual assault. It then assesses overarching
problems in the military’s prosecution of sexual assaults before focusing
on specific problems in the court-martial procedure—namely, the pretri-
al, trial, and sentencing inequities facing an accused. To be fair, no one
problem identified here would itself merit the significant reform
sketched out in Part IV. Taken together, however, these limitations cre-
ate a problem of constitutional magnitude: the denial of due process to
the accused.
A. United States v. Sinclair
For only the third time in over sixty years, the U.S. Army court-
martialed a general in 2013.131 This highly-publicized case,132 United States
v. Sinclair, illustrates how the system is slanted against defendants.
Brigadier General Jeffrey A. Sinclair was tried for a litany of al-
leged offenses stemming from a three-year affair with his subordinate of-
ficer.133 Among other things, he was charged with twice forcing her to fel-
late him against her will, threatening to kill her and her family if she ever
told of their affair, committing adultery, and communicating inappropri-
ately with four female officers.134
General Sinclair pleaded not guilty to all charges.135 A jury of five
major generals was empaneled, but only with considerable difficulty.136
As Charles Dunlap Jr., a Duke law professor and former Air Force depu-
ty JAG, noted, this was the result of “the atmosphere surrounding sexual
assault cases in the military ha[ving] become ‘hyperpoliticized.’”137 Law-
yers for the defense and prosecution “acknowledged the heavy political
pressure swirling around the case,” particularly given President Obama’s
“angry comments” mere months before, demanding that “military sex
abusers be ‘prosecuted, stripped out of their positions, court-martialed,
fired, dishonorably discharged—period.’”138 While forty generals were
assigned to be potential panel members, almost all of them were stricken
130. See generally id.
131. Craig Whitlock, Sordid Details Spill Out in Rare Court-Martial of a General, WASH.
POST (Aug. 14, 2013), http://www.washingtonpost.com/world/national-security/sordid-details-spill-out-
in-rare-court-martial-of-a-general/2013/08/14/f6c89c68-008d-11e3-a661-06a2955a5531_story.html.
132. Alan Blinder & Richard A. Oppel Jr., Faulting Army, Judge Puts off Assault Case, N.Y.
TIMES (Mar. 10, 2014), http://www.nytimes.com/2014/03/11/us/judge-in-generals-assault-case-weighs-
claim-that-prosecution-was-tainted.html.
133. Id.
134. Press Release, Charge Sheet for Brigadier General Jeffrey A. Sinclair, Fort Bragg Press Cen-
ter, available at http://www.fortbraggpresscenter.com/external/content/document/5287/1663395/1/BG
%20Sinclair%20-%20Redacted%20charge%20sheet%20Dec%202012.pdf; see also Whitlock, supra
note 131.
135. Id.
136. Id.
137. Id.
138. Id.
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212 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
from the panel because they admitted having “previously heard about
the charges against Sinclair.”139
Newspapers reported that the alleged victim’s credibility was quick-
ly called into question. She did not dispute that she had previously
threatened suicide and to disclose the affair to Gen. Sinclair’s superiors
when they fought.140 She testified that she had only disclosed their affair
after flying into a “jealous rage” upon finding out that Gen. Sinclair
loved his wife and was sleeping with other women.141 She also testified
that she “had not wanted the Army to charge [Gen. Sinclair] with forci-
ble sodomy or a violent crime.”142 She originally claimed that the rela-
tionship was consensual—a claim substantiated by her statements to oth-
er Service members, text messages, and journal entries.143 But she
changed her story after investigators informed her that she, too, faced
adultery charges.144 In return for her testimony, the prosecution granted
her immunity.145
As the case proceeded, it became apparent to both sides that the al-
leged victim made at least some false statements.146 General Sinclair then
proposed a plea agreement in which he would plead guilty to lesser
charges, the prosecution would drop the most serious sexual assault
charges, and Gen. Sinclair would be allowed “to retire at a reduced
rank.”147 Lieutenant Colonel William Helixcon, who was trusted with
prosecuting the case, told his superior “that the case should not move
forward, that he didn’t want to prosecute the case but that he was being
forced to do so.”148 He also claimed that Brigadier General Paul Wilson,
“a top Army lawyer at the Pentagon,” was actually “‘in charge’ of the
case.”149 Reinforcing this notion, Lieutenant Colonel James Bagwell, Fort
Bragg’s chief of military justice,150 asked Gen. Wilson “for his thoughts
139. Id. These generals stated that “sexual assault is a serious problem in the ranks.” Id. One gen-
eral attended a required sexual assault prevention training program that used Gen. Sinclair “as a case
study in bad behavior,” while another informed the attorneys that his “general reaction” to reading
about the case was that “this is going to be a black eye on the Army.” Id.
140. Whitlock, supra note 131.
141. Id.
142. Id.
143. Alan Blinder & Richard A. Oppel Jr., How a Military Sexual Assault Case Foundered,
N.Y. TIMES (Mar. 12, 2014), http://www.nytimes.com/2014/03/13/us/how-a-military-sexual-assault-case-
foundered.html?ref=todayspaper&_r=0.
144. Whitlock, supra note 131. Provided they are military members, both a lover and a married
person may be charged with adultery because the elements of adultery are: “(1) That the accused
wrongfully had sexual intercourse with a certain person; (2) That, at the time, the accused or the other
person was married to someone else; and (3) That, under the circumstances, the conduct of the ac-
cused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring
discredit upon the armed forces.” UNIFORM CODE OF MILITARY JUSTICE § 62, art. 134 (2012).
145. Id.
146. Richard A. Oppel Jr., General’s Bid for Dismissal of Sex Case is Countered, N.Y.
TIMES (Feb. 28, 2014), http://www.nytimes.com/2014/03/01/us/generals-bid-for-dismissal-of-sex-case-is-
countered.html.
147. Blinder & Oppel Jr., supra note 132.
148. Blinder & Oppel Jr., supra note 143.
149. Id.
150. Blinder & Oppel Jr., supra note 132.
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and opinion about General Sinclair’s plea offer.”151 General Wilson
should have had no influence on the case: Fort Bragg’s Lieutenant Gen-
eral Joseph Anderson was the convening authority.152 Shortly thereafter,
Lt. Col. Helixcon withdrew when his superiors refused to drop the most
serious allegations against Gen. Sinclair, even though “they would be
‘very difficult to prove at trial.’”153 The new prosecutor pressed forward
with all charges.154
In December 2014, the alleged victim’s special victim’s counsel,
Captain Cassie Fowler, sent Gen. Anderson, the convening authority, a
letter arguing that he should reject a plea offer by Gen. Sinclair because
“[a]llowing the accused to characterize this relationship as a consensual
affair would only strengthen the arguments of those individuals that be-
lieve the prosecution of sexual assault should be taken away from the
military.”155 As another Fort Bragg JAG later wrote, Cpt. Fowler’s letter
made Gen. Anderson’s decision “easy.”156 Gen. Anderson explained that
he “read the letter and made [his] decision” to reject a plea deal,
although he later claimed that his only motivation was giving the alleged
victim “her day in court.”157
The military judge, Colonel James Pohl, was not convinced by Gen.
Anderson’s explanation. He halted the trial, released the panel, and, not-
ing that “the military . . . seemed overly concerned about politics and its
public image,” ruled that Cpt. Fowler’s letter had “raised the appearance
of unlawful command influence.”158 Consequently, the defense was al-
lowed to “submit a new plea offer to a different commander.”159
In order to focus on the alleged victim’s credibility, Gen. Sinclair
had previously pleaded guilty to the lesser charges of adultery, possessing
pornography in Afghanistan, and “having improper relationships with
two other female Army officers.”160 Army prosecutors then cut a plea
deal with Gen. Sinclair on the rape charge—he was reprimanded, fined
151. Blinder & Oppel Jr., supra note 143.
152. Id.
153. Id.
154. Id.
155. Id.
156. Id.
157. Id.
158. See Murphy, supra note 27, at 148 (citing David Zucchino, Judge Rules Army Command
Interfered in Sinclair Sexual Assault Case, L.A. TIMES (Mar. 10, 2014), http://www.latimes.com/nation/
nationnow/la-na-nn-sinclair-judge-rules-military-interfered-20140310,0,1682787.story#axzz2w9Rot3
UP); see also How a Military sexual Assault Case Foundered, supra note 143.
159. Blinder & Oppel Jr., supra note 143.
160. Helene Cooper, Senate Rejects Blocking Military Commanders from Sexual Assault Cases,
N.Y. TIMES (Mar. 6, 2014), http://www.nytimes.com/2014/03/07/us/politics/military-sexual-assault-leg
islation.html?_r=0; see also Blinder & Oppel Jr., supra note 134.
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214 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
$20,000, and given no jail time.161 Within three months, Gen. Sinclair was
reduced to the rank of lieutenant colonel and forced to retire.162
As Sinclair demonstrates, and as will be expounded upon below,
when handling sexual assault cases, the military justice system struggles
with political pressure influencing the case, empaneling a member panel
after members have been subjected to flawed, mandatory sexual assault
prevention training, and unlawful command influence—factors that
combine to undercut an accused’s due process rights and throw the mili-
tary justice system’s legitimacy and integrity into question.
B. Problematic Features of the Military Justice System in Sexual Assault
Cases
This Subpart examines several features of the military justice system
that are particularly problematic in the context of sexual assault cases. It
begins by analyzing the difficulties stemming from: (1) a lack of transpar-
ency in the military justice system; (2) placing individuals who have
committed sexual misconduct in charge of prosecuting and preventing
sexual assaults; and (3) altering the justice system to focus on victims,
without ensuring that an accused’s due process rights will be respected. It
then discusses the problems of: (1) referring abnormally large numbers
of sexual assault charges to courts-martial; (2) unlawful command influ-
ence; and (3) placing military defense counsel organizations at a training,
funding, and experience disadvantage compared with trial counsel.
1. Lack of Transparency in the Military Justice System
The military justice system is far from a model of transparency.163 As
several members of the Response Systems to Adult Sexual Assault
Crimes Panel noted, the system “continu[es] to operate outside the con-
straints of 21st-century norms for fairness and transparency in criminal
justice.”164 The military’s general lack of transparency is particularly ap-
parent in two circumstances.
First, unlike civilian trials, military trials and their outcomes are
minimally visible to the public. Civilian courts are presumptively open:
absent special circumstances, trials and court filings are open to the pub-
lic and anyone can walk into a federal or state courthouse and ask to
161. Craig Whitlock, Disgraced Army General, Jeffrey A. Sinclair, Receives Fine, No Jail Time,
WASH. POST (Mar. 20, 2014), http://www.washingtonpost.com/world/national-security/disgraced-army-
general-jeffrey-a-sinclair-receives-fine-no-jail-time/2014/03/20/c555b650-b039-11e3-95e8-39bef8e9a48b
_story.html.
162. David Zucchino, Army Demotes Gen. Jeffrey Sinclair Two Ranks for Sexual Misconduct,
L.A. TIMES (June 20, 2014), http://www.latimes.com/nation/nationnow/la-na-nn-army-sinclair-demoted
-20140620-story.html.
163. Robert Draper, The Military’s Rough Justice on Sexual Assault, N.Y. TIMES MAG. (Nov.
26, 2014), http://www.nytimes.com/2014/11/30/magazine/the-militarys-rough-justice-on-sexual-assault.
html.
164. ADDITIONAL VIEWS OF PANEL MEMBERS, REP. OF THE RESPONSE SYS. PANEL, supra note 1,
at 174.
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165
read a case file for any reason. The military justice system, on the other
hand, makes it hard for the public to learn about trials. Military trials
may be technically open to the public, but these trials are held on mili-
166
tary bases—bases that are rarely, if ever, open to the general public.
Further, the military only makes brief trial results available to the public;
court records and documents related to them will only be released after
repeated Freedom of Information Act requests, appeals, fees, and often
167
months of waiting. This would be less problematic if military trial court
decisions were available on major legal databases like Westlaw and Lex-
isNexis. Unfortunately, only military appellate decisions are included in
reporters.168 This opacity is far from ideal because openness in a justice
169
system “is designed to provide accountability.” Moreover, the opaque-
ness of the system makes it difficult to keep abreast of issues like unlaw-
ful command influence in sexual assault cases.
Second, the military will sometimes conceal information on investi-
gations into Service members’ sex-related misconduct from concerned
legislators without giving a reason.170 Consider two examples. In 2013,
several Marines allegedly put up a Facebook page entitled “F’n Wook,”
which contained images of “women being tied up, beaten and shot.”171
When U.S. Representative Jackie Speier brought the page to Secretary
of Defense Chuck Hagel’s attention in May 2013, the Marine Corps re-
sponded by telling her “the situation was being investigated,” yet the
Marine Corps later refused to tell her “whether anyone had been disci-
plined.”172 In September 2014, U.S. Senators Kirsten Gillibrand and
Claire McCaskill expressed concern to the Army over the court-martial
testimony of a trainee at Fort Leonard Wood that “women were warned
that they might not graduate if they reported any [sexual] assaults.”173
Fort Leonard Wood is the base “where the Army was teaching its crimi-
nal instigators the latest techniques in identifying sexual predators.”174
The Army informed the senators “that it had investigated the matter but
would not disclose its findings.”175
165. Richard Lardner & Eileen Sullivan, Opaque Military Justice System Shields Child Sexual
Abuse Cases, AP (Nov. 18, 2015), http://www.apnewsarchive.com/2015/AP-Investigation-Child-sex-
crimes-in-rank-and-file-shielded-by-opaque-military-justice-system/id-c7c2772ba05c4241a9bcebcf745
d1c71.
166. Id.
167. Id.
168. DAVID A. SCHLUETER, MILITARY CRIMINAL JUSTICE: PRACTICE AND PROCEDURE § 1–3(E)
(8th ed. 2012).
169. Id.
170. Draper, supra note 163.
171. Id.
172. Id.
173. Id.
174. Id.
175. Id.
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216 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
2. Military Leaders Charged with Preventing and Prosecuting Sexual
Assault Have Committed Sexual Misconduct
Not only does the military justice system lack transparency, but also
its fairness is called into question when the very individuals charged with
preventing and punishing sex crimes have committed sexual misconduct
themselves. The two most prominent examples are the cases of Lieuten-
ant Colonel Jay Morse, the Army’s top prosecutor for sex crimes, and
Lieutenant Colonel Jeffrey Krusinski, the Air Force’s director for sexual
assault prevention.176 In June 2014, Lt. Col. Morse was reprimanded for
“molesting a female officer at a sexual assault prevention conference,”
while Lt. Col. Krusinski was reprimanded “for drunkenly fondling a
woman in a bar against her will.”177 Neither faced any punishment be-
yond a reprimand. This was not for a lack of trying. When Lt. Col.
Krusinski did not face civilian sexual battery charges, the chief Air Force
prosecutor, Colonel Don Christenson, recommended that he be court-
martialed.178 The Air Force, however, opted to simply reprimand him and
allow him to stay in the Air Force.179
3. The Military Has Adopted a Victim-Centric Approach to Sexual
Assault Cases
A further problem with the military justice system is that it has
adopted an overwhelmingly “victim-centric approach” to sexual assault
cases, without developing any analogous defense capabilities.180 Alleged
victims are aided and supported by a dizzying array of actors. For exam-
ple, an alleged victim will be helped by a Sexual Assault and Response
Team, which often includes forensic lab and health care personnel, law
enforcement representatives, victim advocates, and individuals in the
Special Victim Capability—the Special Victim Unit Investigator, the
Special Victim Prosecutor, and the Victim Witness Liaison—all of whom
are expected to coordinate with the prosecutor’s office and the SJA.181
Moreover, victims are entitled to a Special Victim Counsel, also known
as a Victim Legal Counsel, who is an attorney paid for by the military
that represents alleged victim’s “rights and interests during the investiga-
tion and court-martial process.”182
176. Id.
177. Id.
178. Id.
179. Jon Harper, Air Force to Reprimand Krusinski Rather than Pursue Court-Martial, STARS
& STRIPES (Sept. 4, 2014), http://www.stripes.com/news/air-force-to-reprimand-krusinski-rather-than-
pursue-court-martial-1.301295.
180. REP. OF THE RESPONSE SYS. PANEL, supra note 1, at 113.
181. Id. at 97–99, 113. Alleged victims will also receive the support of unit and command leader-
ship, a Sexual Assault Prevention and Response Victim Advocate, a Sexual Assault Response Coordi-
nator, a Domestic Abuse Victim Advocate, a Victim Coordinator, the Victim Witness Assistance Pro-
gram, on- and off-post social services, chaplains, and behavioral health services personnel. Id.
182. Id. at 93; see also U.S. AIR FORCE, SPECIAL VICTIMS’ COUNSEL RULES OF PRACTICE AND
PROCEDURE 14–16 (2013), available at http://responsesystemspanel.whs.mil/Public/docs/meetings/
Sub_Committee/20140226_VS/Materials_Related/05_USAF_SpecialVictimsCounsel_RulesofPracticea
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Since 2004, legislation has radically altered the way that the military
justice system handles sexual assault cases, uniformly changing the sys-
tem to the alleged victim’s benefit.183 For example, in 2005, Congress pro-
tected Service members who reported sexual assault through the chain of
command from retaliation.184 In 2006, Congress rewrote and greatly ex-
panded Article 120185 and eliminated the statute of limitations for rape.186
The last three NDAAs are particularly notable because they con-
tained over one hundred new requirements pertaining to military sexual
assaults.187 For example, in 2013, Congress mandated administrative dis-
charges for Service members convicted of rape or sexual assault whose
sentences did not include punitive discharge, meaning any Service mem-
ber convicted of a sexual assault crime would be discharged one way or
the other.188 In the 2014 law alone, Congress made “the most sweeping
changes to military law since 1968.”189 Among other changes, the 2014
NDAA narrowed the scope of Article 32 hearings from investigations to
preliminary hearings190 and curtailed convening authorities’ Article 60
ability to mitigate or set aside sentences in Article 120 cases.191 It also re-
quired that, if defense counsel were notified by trial counsel that the
complaining witness would be testifying at the Article 32 hearing or
court-martial, defense counsel had to request to interview the alleged
victim through trial counsel.192 “[A]ny interview of the victim by defense
counsel” could only “take place . . . in the presence [of] trial counsel, a
counsel for the victim, or a Sexual Assault Victim Advocate.”193 Moreo-
ver, the 2014 NDAA restricted dispensation for serious sex-related of-
ndProcedure.pdf; U.S. ARMY, SPECIAL VICTIM COUNSEL HANDBOOK 11–14 (Nov. 2013), available at
http://responsesystemspanel.whs.mil/Public/docs/meetings/Sub_Committee/20140226_VS/Materials_R
elated/03a_USA_SpecialVictimsConsel_Handbook.pdf.
183. See, e.g., REP. OF THE RESPONSE SYS. PANEL, supra note 1, at Appendix G (summarizing
relevant provisions of the FY 2004–2014 National Defense Authorization Acts).
184. National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, § 591, 118
Stat. 1811, 1933–34 (2004).
185. National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, § 552, 119
Stat. 3136, 3256–63 (2006).
186. Id. § 553, 119 Stat. at 3264.
187. U.S. DEP’T OF DEF., EXEC. SUMMARY: REP. TO THE PRESIDENT OF THE UNITED STATES ON
SEXUAL ASSAULT PREVENTION AND RESPONSE 14 (2014), available at http://sapr.mil/public/docs/
reports/FY14_POTUS/FY14_DoD_Report_to_POTUS_Executive_Summary.pdf.
188. National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239, § 572(a)(2),
126 Stat. 1632, 1753–54 (2013).
189. EXEC. SUMMARY: REP. TO THE PRESIDENT OF THE UNITED STATES ON SEXUAL ASSAULT
PREVENTION AND RESPONSE, supra note 187, at 14; see also Charles D. Stimson, Military Sexual As-
sault Reform: Real Change Takes Time, BACKGROUNDER 1–9 (2014), available at http://www.heritage.
org/research/reports/2014/03/military-sexual-assault-reform-real-change-takes-time.
190. National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113–66, § 1702(a), 127
Stat. 672, 954–55 (2014).
191. Id. § 1702(b), 127 Stat. at 955–56.
192. EXEC. SUMMARY: REP. TO THE PRESIDENT OF THE UNITED STATES ON SEXUAL ASSAULT
PREVENTION AND RESPONSE, supra note 187, at 14; see also National Defense Authorization Act for
Fiscal Year 2014 § 1704, 127 Stat. at 958–59.
193. EXEC. SUMMARY: REP. TO THE PRESIDENT OF THE UNITED STATES ON SEXUAL ASSAULT
PREVENTION AND RESPONSE, supra note 187, at 14; see also National Defense Authorization Act for
Fiscal Year 2014 § 1704, 127 Stat. at 958–59.
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218 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
fenses to a general court-martial194 and allowed victims to participate in a
court-martial’s clemency phase.195 Congress also modified Rule for
Courts-Martial 306 so that an accused’s military service and character
could no longer be considered in an initial disposition decision.196 Finally,
Congress mandated review of convening authorities’ decisions not to re-
fer serious sexual assault charges to courts-martial.197
To be clear, retooling the military justice system’s response to sexu-
al assaults in order to thoroughly support alleged victims is not malign in
itself. Victims must be encouraged to come forward if the military is to
effectively combat sexual assault. But Congress did little to ensure that
an accused’s due process rights would also be respected, despite radically
altering the justice system. Instead, Congress gave alleged victims a pan-
oply of advantages that often came at the expense of the accused. Con-
gress merely allowed an accused to retain long-standing protections, such
as the entitlement to military defense counsel for a court-martial
(although this protection does not exist for non-judicial punishment).198
Otherwise, Congress generally curtailed an accused’s rights, as detailed
above.
4. Virtually All Serious Allegations of Sexual Assault Are Referred to
Court-Martial
System legitimacy and procedural fairness are essential to a justice
system.199 A legitimate and fair system cannot allow illegitimate or unfair
pressure to change proof standards. In the military justice system, cases
are only supposed to be referred to courts-martial if “there are reasona-
ble grounds to believe that an offense triable by a court-martial has been
committed and that the accused committed it.”200 Nonetheless, virtually
all serious allegations of sexual assault are referred to general courts-
martial, regardless of whether these cases would be more appropriately
tracked toward less severe punishments.201
194. Id. § 1705(b), 127 Stat. at 959–60.
195. Id. § 1706, 127 Stat. at 956–61.
196. Id. § 1708, 127 Stat. at 961.
197. Id. § 1744, 127 Stat. at 980–81.
198. See, e.g., Right to Counsel, LEGAL SERVS., U.S. NAVY JUDGE ADVOCATE GEN. CORPS, (last
visited Oct. 12, 2015).
199. Cf. REP. OF THE RESPONSE SYS. PANEL, supra note 1, at 163.
200. MANUAL FOR COURTS-MARTIAL, supra note 40, at 601(d)(1); see also U.C.M.J. art. 34.
201. Convening authorities rarely choose to pursue non-judicial punishment (“NJP”) or discharge
in lieu of court-martial. See REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 172. They
are virtually never used when penetrative sexual assault is alleged. Id. For instance, in FY 2013, con-
vening authorities referred sexual assault allegations to NJP at the following rates: Army, 133; Air
Force, 27; Navy, 27; Marines, 1; Coast Guard, 4. Id. at 177. While the data does not indicate how many
of these involved penetrative offenses, it would be extraordinary if many did because, in FY 2012, the
Army sent 0 cases involving penetrative offenses to NJP (133 non-penetrative offenses were, however,
referred for NJP) and the Marine Corps only allowed 2 cases involving a “contact sex offense” to be
referred to NJP (14 non-contact cases were referred for NJP). Id. As for discharge in lieu of court-
martial, in FY 2013, convening authorities permitted this outcome at the following rates: Army, 66; Air
Force, 12; Navy, 4; Marines, 2; Coast Guard (total for FY 2007–2013), 10. Id. at 179. Again, nothing
indicates that any of these involved penetrative offenses.
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No. 1] JUSTICE IS NO LONGER BLIND 219
Because of the existing incentive structure, this result is eminently
foreseeable. As explained in Parts II.C and III.B.5.c, positive perfor-
mance evaluations, and therefore promotions, are partially dependent on
how effectively sexual assaults are handled and decisions to not refer
cases to court-martial must be put in writing, can be objected to by a lita-
ny of officers, and will be reviewed by a convening authority’s superi-
ors.202
The latest DoD annual report on military sexual assault demon-
strates that there is indeed an abnormal number of sexual assault cases
being referred to courts-marital.203 First, as Figure 1 illustrates, after a
DoD investigation of an allegation of sexual assault has been completed,
commanders are extremely unlikely to find that a case is unfounded, that
is, “false or baseless.”204
FIGURE 1: UNFOUNDED CASES IN COMPLETED DOD
INVESTIGATIONS OF SEXUAL ASSAULT205
Over the last five years, commanders have only been willing to say
that allegations are unfounded in an average of 1.8 percent of all report-
ed cases.206 Compare this to Military Criminal Investigative Organiza-
tions, which adjudge an average of fourteen percent of reported subject
dispositions to be unfounded.207 While one would expect more cases to be
found baseless during the preliminary investigations that Military Crimi-
202. See Murphy, supra note 27, at 130 (noting that commanders are incentivized to only take
actions in sexual assault cases that reflect “what they think Congress believes to be the []correct ac-
tion” due to the harsh consequences, such as being blocked for promotion or losing rank, that com-
manders have faced when they took actions some would view as “incorrect”).
203. DEPARTMENT OF DEFENSE ANNUAL REPORT ON SEXUAL ASSAULT IN THE MILITARY:
FISCAL YEAR 2013, supra note 5, at 75, 81.
204. Id. at 89.
205. ANNUAL REPORT ON SEXUAL ASSAULT IN THE MILITARY: FISCAL YEAR 2014, supra note
26, at 101. The military started compiling this data in 2009.
206. See Fig.1.
207. Id.
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220 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
nal Investigative Organizations conduct, it is implausible that 98.2 per-
cent of the cases that reach commanders are well founded. Commanders
are apparently unwilling to weed out poor cases—a decision that comes
at great cost to a wrongly accused Service member, who will be subjected
to the humiliation and burden of an unnecessary investigation.
Moreover, as seen in Figure 2, when there is sufficient evidence to
support action on allegations of sexual assault, commands overwhelming-
ly initiate courts-martial charges against an accused instead of using any
other available disciplinary action. Cases tracked toward courts-martial
have skyrocketed over the last seven years, going from the least likely
disciplinary action in FY 2007 to by far the most common action in FY
2014, with a gulf of forty-three percent between cases sent to courts-
martial and the next most common disciplinary action.208
FIGURE 2: COMMAND ACTION IN SEX ASSAULT OFFENSE WITH
SUFFICIENT EVIDENCE TO SUPPORT ACTION209
As Figure 3 demonstrates, in FY 2014 alone, court-martial charges
were initiated in 64.4 percent of all sexual assault offense actions where
evidence supported commander action. In stark contrast, court-martial
charges were initiated in only 10.9 percent of non-sexual assault offenses.
208. See Fig.2.
209. ANNUAL REPORT ON SEXUAL ASSAULT IN THE MILITARY: FISCAL YEAR 2014, supra note
26, at 92.
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FIGURE 3. MILITARY SUBJECT DISPOSITIONS IN FY14210
MILITARY SUBJECT DISPOSITIONS IN FY14
Dispositions Re-
Subject Disposition Category ported in FY14
Military Subjects in Sexual Assault Cases Reviewed for Pos-
sible Disciplinary Action 2,625
Evidence-Supported Commander Action 1,997
Sexual Assault Offense Action 1,550
Court-Martial Charge Preferred (Initiated) 998
Nonjudicial Punishment (Art. 15, UCMJ) 318
Administrative Discharge 111
Other Adverse Administrative Action 123
Evidence Only Supported Action On a Non-Sexual Assault 447
Offense
Court-Martial Charge Preferred (Initiated) 49
Nonjudicial Punishment (Art. 15, UCMJ) 263
Administrative Discharge 30
Other Adverse Administrative Action 105
Unfounded by Command/Legal Review 48
Commander Action Precluded 580
Victim Died 0
Victim Declined to Participate 248
Insufficient Evidence to Prosecute 323
Statute of Limitations Expired 9
Further illustrating how much more likely a sexual assault offense is
to be pushed to court-martial than a non-sexual assault offense, Navy
and Marine Corps commanders referred seventy-four percent of sexual
assault cases to court-martial in FY 2013; only twenty percent of non-
sexual assault cases were referred to court-martial.211
210. ANNUAL REPORT ON SEXUAL ASSAULT IN THE MILITARY: FISCAL YEAR 2014, supra note
26, at 89. One caveat to these numbers: the military apparently does not report the dispositions of cas-
es that do not start out as sexual assault investigations.
211. See Fig.4.
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222 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
FIGURE 4. ALL CASES PRESENTED TO COMMANDERS FOR
DISPOSITION IN FY13: NAVY & MARINE CORPS COMBINED212
Commanders clearly prefer to refer serious sexual assault allega-
tions to courts-martial. Make no mistake: this rash of courts-martial for
sexual assault charges is not a harmless abnormality. Rather, it undercuts
the military justice system’s legitimacy and undermines key constitution-
al presumptions. As Captain Lindsay Rodman, a Marine JAG, ex-
plained, an accused’s innocence is no longer being presumed and over-
prosecution has created a “vicious” acquittal cycle:
[C]ommanders have attempted to accommodate public pressure to
prosecute these cases. . . . commanders feel hamstrung to prosecute
sexual assaults to the fullest, regardless of the possibility of success
at trial. Political pressure from victims’ rights groups have created
an environment in which Servicemembers are no longer presumed
innocent until proven guilty beyond a reasonable doubt, which is a
constitutional travesty. Public complaints that the military does not
take sexual assault seriously have prompted overprosecution in cas-
es that would likely not go to trial in the civilian world. This creates
a vicious cycle of acquittals in the court-martial system, continuing
to compound an optics problem in the military.213
Of course, if the case profiles of sexual assault cases merited prose-
cution more than those of most non-sexual assault cases, sexual assault
cases would be properly pushed to courts-martial at higher prevalence
rates. Not so.214 In fact, JAGs say convening authorities are ignoring their
advice and pushing cases with bad facts to courts-martial:
[C]ommanding officers and commanding generals often neglect to
heed the advice of their legal advisors—the prosecutor, the Article
212. DEPARTMENT OF DEFENSE ANNUAL REPORT ON SEXUAL ASSAULT IN THE MILITARY:
FISCAL YEAR 2013, supra note 5, at App. J pp. 6, 20. The Navy and Marine Corps were the only
branches providing data on all cases presented to commanders for disposition in FY 2013.
213. Lindsay L. Rodman, Fostering Constructive Dialogue on Military Sexual Assault, 69 JOINT
FORCES Q. 25, 26 (2d Quarter 2013).
214. Id. at 28.
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No. 1] JUSTICE IS NO LONGER BLIND 223
32 officer, and/or the SJA—and push forward on sexual assault cas-
es that lack merit at trial. They do so because they fear they will be
perceived as taking the accusations lightly. The problem in these
cases is the facts. They often cannot be developed fully enough to
achieve proof beyond a reasonable doubt . . . . When a prosecutor
does not have good facts, convictions cannot be the expectation.
Nor should we want there to be a conviction in many of those cases.
That would require a standard below the “beyond a reasonable
doubt” standard, creating an exception in criminal law for sexual
assault cases in direct contravention of the Constitution.215
5. The Inescapable Problem of Unlawful Command Influence
One of the most significant problems with the military justice sys-
tem’s prosecution of sexual assaults today is that actual or apparent un-
lawful command influence—either of which constitutes a denial of due
process216—is often, at least potentially, present.217 Unless changes are in-
stituted, the inescapable consequence is that unlawful command influ-
ence is likely to color the court-martial process in sexual assault cases, as
the rash of unlawful command motions indicate that it has already start-
ed to do.218
a. Why Unlawful Command Influence Motions Are Prevalent
The first factor contributing to the prevalence of unlawful command
influence problems is that unlawful command influence can affect any
aspect of a court-martial and defense counsel need only meet a minimal
threshold to assert it. Again, a person commits unlawful command influ-
ence by attempting to “coerce or, by any unauthorized means, influence
the action” of courts-martial or military tribunals.219 The test for apparent
unlawful command influence is whether an objective, disinterested
member of the public who was aware “of all the facts and circumstances,
would harbor a significant doubt about the fairness of” the military jus-
215. Id. at 29–30. Unfortunately, military conviction rates in sexual assault cases cannot be com-
pared to civilian conviction rates in similar cases, which would permit a better assessment of whether
losing cases are being pushed to courts-martial. See REP. OF THE COMPARATIVE SYS. SUBCOMM., su-
pra note 1, at 8. This is for three reasons. Much of the civilian data only tracks felony-level crimes,
whereas Article 120 offenses “span a much wider range of conduct.” Id. The military does not publish
the disposition of sexual assault reports by offense, while state jurisdictions—where the overwhelming
majority of sexual assault cases are tried—do not have to publish this data. Id. And civilian and mili-
tary systems differ on how they “account for cases throughout the process,” diverging, for instance, on
whether investigators can “unfound and close a case before a prosecutor ever receives it,” which has
the effect of not accounting for all sexual assaults that are reported. Id. at 8–9.
216. United States v. Calley, 46 C.M.R. 1131, 1149 (A.C.M.R. 1973).
217. For an extensive analysis of unlawful command influence, see DAVID A. SCHLUETER,
MILITARY CRIMINAL JUSTICE: PRACTICE AND PROCEDURE 365, 365–92 (7th ed. 2008); Murphy, supra
note 27, at 144–53; Monu Bedi, Unraveling Unlawful Command Influence (Feb. 2015) (on file with
author).
218. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 195.
219. 10 U.S.C. § 837 (2012).
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224 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
tice system.220 The defense has the initial burden of raising the issue, but
need only meet the low standard of presenting “some evidence” of un-
lawful command influence.221 Therefore, while the defense must show
“more than [a] mere allegation or speculation,” the defense only needs to
“show facts which, if true, constitute unlawful command influence, and
that the alleged unlawful command influence has a logical connection to
the [judicial proceeding], in terms of its potential to cause unfairness.”222
Once the defense makes this initial showing, the burden of proof
shifts to the government to show one of the following beyond a reasona-
ble doubt: (1) the facts upon which the unlawful command influence al-
legation is based are inaccurate; (2) the facts, while accurate, do not con-
stitute unlawful command influence; or (3) even if the facts are accurate
and constitute unlawful command influence, the unlawful command in-
fluence will not prejudice the proceedings or affect the sentence and
findings.223 “[O]nce unlawful command influence is raised,” however, “a
presumption of prejudice is created.”224
In addition to the ease with which it can be at least asserted, unlaw-
ful command influence is likely to be found in sexual assault cases be-
cause the chain of command has spoken to how sexual assault cases
should be handled and military personnel are conditioned to follow or-
ders. Failure to obey orders is punishable under multiple U.C.M.J. arti-
cles, in extreme cases with death.225 While it is true that military members
must obey only lawful orders,226 orders that are not patently illegal will
almost always be followed because “an order requiring the performance
of a military duty or act may be inferred to be lawful and . . . is disobeyed
at the peril of the subordinate.”227 In reality, when a “service member
is . . . tried for disobeying an order, it is presumed that the order is lawful,
228
and the accused bears the burden of rebutting the presumption.” Fur-
ther, “especially when coming from the president and general officers,
the merest expressed wish of those higher in the chain of command is
229
treated as an order enjoying a presumption of lawfulness.” This makes
military justice different from civilian justice, as James Joyner, a profes-
sor at the Marine Corps Command and Staff College, and James W.
Weirick, a former Marine JAG, explain:
220. United States v. Howell, NMCCA 201200264, 2014 CCA LEXIS 321, at *27–28 (N-M. Ct.
Crim. App. May 22, 2014) (quoting United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006)).
221. Id. at *25–26 (citing United States v. Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013); United States
v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999)).
222. Id. at *25–26 (citing Salyer, 72 M.J. at 423; Biagase, 50 M.J. at 150).
223. Id. at *26 (citing Biagase, 50 M.J. at 151).
224. Id. (quoting United States v. Douglas, 68 M.J. 349, 354 (C.A.A.F. 2010)).
225. See, e.g., U.C.M.J. art. 90; U.C.M.J. art. 92; MANUAL FOR COURTS-MARTIAL, supra note 40,
at IV-19–21; IV-23–25.
226. See United States v. Calley, 48 C.M.R. 419, 28 (C.M.A. 1973).
227. MANUAL FOR COURTS-MARTIAL, supra note 40, at Part IV, ¶ 14(c)(2)(a)(i).
228. James Joyner & James W. Weirick, Sexual Assault in the Military and the Unlawful Com-
mand Influence Catch-22, WAR ON THE ROCKS (Oct. 7, 2015), http://warontherocks.com/2015/10/
sexual-assault-in-the-military-and-the-unlawful-command-influence-catch-22/.
229. Id.
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No. 1] JUSTICE IS NO LONGER BLIND 225
Because military jurors are under obligation to follow the orders of
those above them—and in particular the president, secretary of de-
fense, and senior generals—the command climate and references to
the wishes of senior leaders are much more difficult for military ju-
rors to discount. Civilian jurors are simply not subject to that same
pressure. Which, in turn, means military defendants need more pro-
230
tection than their civilian counterparts.
As Part II.B noted, an aggressive campaign has been mounted to
combat military sexual assaults: a campaign that has included thousands
of speeches by government and military officials highlighting the need to
231
eradicate military sexual assaults. Given the combination of high-
ranking members of the chain of command unequivocally stating how
they expect allegations of sexual assault to be handled—swiftly and
harshly232—and military personnel’s propensity for following orders,
defense attorneys can satisfy the low initial threshold for showing unlaw-
ful command influence in sexual assault cases relatively easily. Notably,
however, doing so only establishes a rebuttable presumption of
prejudice.
b. The Prevalence of Unlawful Command Influence Motions in
Sexual Assault Cases
It is therefore unsurprising that defense attorneys in Article 120
cases have been consistently filing—and winning—unlawful command
influence motions.233
Each Service branch was ordered to produce the unlawful command
influence complaints and motions that had been filed in sexual assault
cases from January 1, 2012, through December 18, 2013.234 The branches
do not generally track these complaints and motions. Nevertheless, the
Army estimated that there were unlawful command influence motions
filed “in approximately one-fourth of contested sexual assault cases.”235
The Air Force reported “numerous motions” and several complaints.236
The Navy projected that “one motion per Sexual Assault Case” was
filed.237 The Marine Corps believed that one hundred motions had been
filed.238 And the Coast Guard reported that six motions were filed.239
230. Id.
231. James Joyner & James W. Weirick, Sexual Assault in the Military and the Unlawful Com-
mand Influence Catch-22, WAR ON THE ROCKS (Oct. 7, 2015), http://warontherocks.com/2015/10/
sexual-assault-in-the-military-and-the-unlawful-command-influence-catch-22/.
232. See supra Part II.B.
233. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 195. For statistics, sample mo-
tions or complaints, and trial counsel’s response, see Services’ Responses to Request for Information
#84, RESPONSE SYS. PANEL (Dec. 19, 2013), available at http://responsesystemspanel.whs.mil/Public/
docs/Background_Materials/Requests_For_Information/RFI_Response_Q84.pdf.
234. Id. at 1.
235. Id.
236. Id.
237. Id.
238. Id. at 1–2.
239. Id.
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226 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
Many motions for unlawful command influence have been success-
ful, but the remedies for a finding of unlawful command influence vary
widely.
In many cases, an accused has received “significant remedies” based
on a convening authority having exercised unlawful command influ-
ence.240 For example, in United States v. Kaufman, “sexual assault offens-
es were dismissed when the GCMCA received a promotion after refer-
ring a case where the recommendation from the chain of command and
investigating officer was to not send the case forward.”241
In other cases, JAGs have exercised unlawful command influence.
For example, in United States v. Sinclair, “the military judge halted the
trial and allowed the defense to submit another offer to plead guilty after
finding that the convening authority had been unlawfully influenced” af-
ter a JAG asked the convening authority to reject a plea offer because
accepting it would help individuals who wanted to strip the military of
the power to prosecute military sexual assaults.242 In another case, an ac-
cused had his case transferred to another convening authority—an “al-
most unheard of” remedy—because the Air Force Judge Advocate Gen-
eral (the top legal officer in the Air Force) told the initial convening
authority that “absent ‘smoking gun’ evidence about an alleged victim’s
credibility, [sexual assault cases] should be sent to court-martial” and the
failure to do so in the accused’s case “would enable Senator Kirsten Gil-
librand to gain needed votes on a pending bill to remove commanders
243
from the court-martial process.” Moreover, in United States v. Garcia,
the United States Army Court of Criminal Appeals set aside multiple
findings of guilt upon finding that a JAG’s “multiple references” during
trial “to the Army’s efforts to confront sexual assault . . . attempted to
impermissibly influence the panel’s findings by injecting command policy
244
into the trial.” Strikingly, this means that, if shown to influence a case,
the military’s efforts to eradicate sexual assault may be, in and of them-
selves, enough to create a due process violation.
Defense attorneys have most often sought relief based on the ill-
considered words of top military and civilian leaders. Defense attorneys
have been particularly prone to seek relief based on speeches by Presi-
240. See Murphy, supra note 27, at 147–48 (citing Transcript of Article 39(a) session, United
States v. Kaufman, at 71–72 (Shaw Air Force Base, June 15, 2013) (investigating officer found that no
reasonable grounds existed for any of the sexual assault charges)). For a discussion of the severe con-
sequences stemming from a finding of unlawful command influence, see Lieutenant James D. Harty,
Unlawful Command Influence and Modern Military Justice, 36 NAV. L. REV. 231, 242 (1986).
241. See id. at 147–48 (citing Transcript of Article 39(a) session, United States v. Kaufman, at 71–
72).
242. Murphy, supra note 27, at 148 (citing Zucchino, supra note 162).
243. Nancy Montgomery, Sexual Assault Case Not Dismissed Despite Ruling of Unlawful Com-
mand Influence, STARS AND STRIPES (Aug. 12, 2015), http://www.stripes.com/sexual-assault-case-not-
dismissed-despite-ruling-of-unlawful-command-influence-1.362563.
244. No. 20130660 (A. Ct. Crim. App. Aug. 18, 2015), available at https://www.jagcnet.army.mil/
Portals/Files/ACCAOther.nsf/MODD/5EB02B308E9DEC4585257EA60055DFB5/$FILE/mo-garcia,
%20g.pdf.
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No. 1] JUSTICE IS NO LONGER BLIND 227
dent Obama, General Dempsey, and General Amos.245 After President
Obama’s remarks in May 2013 stating that he had zero tolerance for sex-
ual assaults,246 defense attorneys in dozens of sexual assault cases filed
relatively successful motions alleging unlawful command influence.247 For
example, in United States v. Fuentes and United States v. Johnson, Com-
mander Marcus Fulton, a Navy judge, “ruled that statements against sex-
ual assault by President Obama constitute[d] apparent [unlawful com-
mand influence] and that, as a result, the defendants could not receive a
punitive discharge if found guilty.”248 In June 2013, a military judge at
South Carolina’s Shaw Air Force Base “dismissed charges of sexual as-
sault against an Army officer, noting the command influence issue.”249
And, in United States v. Averell, Commander John Maksym, a Navy
judge, found that President Obama and General Dempsey’s comments
“constituted apparent [unlawful command influence] and granted the de-
fense extra preemptory challenges.”250 Moreover, as of August 2013,
eighty or more motions have been filed in sexual assault cases alleging
unlawful command influence due to General Amos “assert[ing] that 80
percent of sexual assault accusations are legitimate,” “disparage[ing] the
‘buyer’s remorse’ defense in sexual assault cases as ‘bullsh–,’” strongly
“condemn[ing] immoral actions by Marines[,] and press[ing] for aggres-
sive responses when they were discovered” in his Heritage Brief tour.251
“At least four of these resulted in findings of apparent [unlawful com-
mand influence].”252 In at least one case, an appellate court ordered a re-
253
trial, which resulted in the original sentence being set aside.
245. For the text of these remarks, see supra Part II.B.
246. See supra Part II.B.
247. Jennifer Steinhauer, Hagel Tries to Blunt Effect of Obama Words on Sexual Assault Cases,
N.Y. TIMES (Aug. 14, 2013), http://www.nytimes.com/2013/08/15/us/politics/hagel-tries-to-blunt-effect-
of-obama-words-on-sex-assault-cases.html?_r=1&.
248. Petersen, supra note 76; see also Findings and Conclusions re: Def. Motion to Dismiss for
Unlawful Command Influence, United States v. Johnson, N-M. Trial Judiciary, Haw. Jud. Cir. (June
12, 2013), available at http://www.stripes.com/polopoly_fs/1.225981.1371237097!/menu/standard/file/
johnson-uci-ruling.pdf; Slavin, supra note 20; Steinhauer, supra note 247.
249. Petersen, supra note 76.
250. Id.; Erik Slavin, Military Judge Reduces Challenges to Jury in Sex Assault Case, STARS &
STRIPES (July 25, 2013), http://www.stripes.com/news/pacific/military-judge-reduces-challenges-to-
jury-in-sex-assault-case-1.232097; Erik Slavin, USS Germantown Chief Petty Officer Sentenced for Sex-
ual Assault, STARS & STRIPES (July 30, 2013), http://www.stripes.com/news/pacific/uss-germantown-
chief-petty-officer-sentenced-for-sexual-assault-1.232848.
251. Dan Lamothe & Gina Harkins, Commandant’s Actions in Scout Sniper Cases Eyed by Sex
Assault Defense Attorneys, MARINE CORPS TIMES (Aug. 4, 2013), http://www.marinecorpstimes.com/
apps/pbcs.dll/article?AID=2013308040005; see also Hope Hoge Seck, Marine’s Sentence Cut in Half
After Unlawful Influence Reversal, MARINE CORPS TIMES (June 4, 2015), http://www.marinecorps
times.com/story/military/crime/2015/06/04/marines-sentence-cut-in-half-after-uci-reversal/28408327/.
252. Petersen, supra note 76.
253. Hope Hoge Seck, Marine’s Sentence Cut in Half After Unlawful Influence Reversal, MARINE
CORPS TIMES (June 4, 2015), http://www.marinecorpstimes.com/story/military/crime/2015/06/04/
marines-sentence-cut-in-half-after-uci-reversal/28408327/.
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228 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
c. Unlawful Command Influence Problems Are Likely to
Continue
Even if top military and civilian authorities become more adept at
making statements that do not create unlawful command influence prob-
lems, there is no reason to believe that the unlawful command influence
problem will cease to plague sexual assault cases. If anything, it may be-
come more prevalent.
First, as Secretary of Defense Chuck Hagel noted, eliminating mili-
tary sexual assaults remains one of the “highest priorities” of the DoD
for the foreseeable future.254 Consequently, the DoD has taken “aggres-
sive action” and been “acutely focused”255 on sexual assaults, recently
adding “over 28 new initiatives . . . to strengthen how [it] prevent[s] and
respond[s] to sexual assault.”256 The Secretary of Defense directed forty-
one similar initiatives from 2012 to 2014.257
Second, the DoD has established command climate assessments
that create a climate that fosters actions that could amount to unlawful
command influence. The DoD has instituted mandatory climate assess-
ment surveys that will be “automatically shared with the unit command-
er’s immediate supervisor”; unit commanders are rated on this survey as
part of their evaluation reports.258 “At every level of Department leader-
ship,” the DoD baldly stated, “the message has been clearly established
that sexual assault and harassment will not be tolerated, and the United
States military is no place for individuals who find such behavior ac-
ceptable. Commanders are expected to embrace this philosophy. . . .”259
Moreover, proposed legislation such as the Victims Protection Act
of 2014 (“VPA”)260 would, if passed,261 certainly ensure that enterprising
254. Emmarie Huetteman, Rise in Sexual Assault Reports Is a Positive, Hagel Says, N.Y. TIMES
(Dec. 4, 2014), http://www.nytimes.com/2014/12/05/us/rise-in-sex-assault-reports-is-a-positive-hagel-
says.html. This is because “[e]radicating sexual assault from our ranks is not only essential to the long-
term health and readiness of the force; it is also about honoring our highest commitments to protect
our fellow soldiers, sailors, airmen and Marines.” Press Release, Dep’t of Def., Secretary Hagel Re-
leases Progress Report to the President on Sexual Assault in the Military, Announces Four New Di-
rectives to Strengthen Department Response (Dec. 4, 2014), available at http://www.defense.gov/
Releases/Release.aspx?ReleaseID=17063.
255. EXEC. SUMMARY: REP. TO THE PRESIDENT OF THE UNITED STATES ON SEXUAL ASSAULT
PREVENTION AND RESPONSE, supra note 187, at 5.
256. Tyrone C. Marshall Jr., More Must be Done to Eliminate Sexual Assault, Hagel Says, DOD
NEWS, U.S. DEP’T OF DEF. (Dec. 4, 2014), http://www.defense.gov/news/newsarticle.aspx?id=123760;
see also Press Release, supra note 244.
257. EXEC. SUMMARY: REP. TO THE PRESIDENT OF THE UNITED STATES ON SEXUAL ASSAULT
PREVENTION AND RESPONSE, supra note 187, at 6.
258. Id. at 15.
259. Id.
260. Victim’s Protection Act of 2014, S. 1917, 113th Cong. (2014).
261. It is true that the VPA has not passed the House and technically died in a previous Congress.
S. 1917 (113th): Victims Protection Act of 2014, GOVTRACK.US, https://www.govtrack.us/congress/
bills/113/s1917 (last visited Oct. 12, 2015). But its provisions were popular enough to unanimously pass
the Senate, indicating that, if reintroduced, it may well be enacted. U.S. Senate Roll Call Votes 113th
Congress-2nd Session, U.S. SENATE, http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_
vote_cfm.cfm?congress=113&session=2&vote=00062 (last visited Oct. 12, 2015). Further, even if Con-
gress does not pass the VPA, sections of it have been incorporated into the Fair Military Act, H.R.
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No. 1] JUSTICE IS NO LONGER BLIND 229
defense counsel would long be able to make unlawful command influ-
ence claims. Two VPA provisions are particularly relevant. Section
3(c)(1) requires written performance appraisals of all Service members
that must “include an assessment of the extent to which each such mem-
bers supports the sexual assault prevention and response program of the
Armed Force concerned.”262 Additionally, Section 3(c)(2) requires that
commanding officers’ performance appraisals include an evaluation of
whether or not they have “established a command climate in which . . .
allegations of sexual assault are properly managed and fairly
evaluated.”263
These provisions incentivize unlawful command influence because
evaluations are used to identify those Service members who are best
qualified for promotion.264 The military promotions structure is an “up or
out” system in which Service members can only stay in the military if
they move up in rank.265 Service members who are passed over twice for
promotion are forced to either retire or leave the military.266 If, then, the
employment prospects of military personnel—particularly commanders
who are convening authorities—rest in part upon how effectively they
are working toward eliminating sexual assaults, these individuals have
every reason to ensure that every allegation of sexual assault is punished
as severely as possible. Accordingly, it would be surprising if unlawful
command influence allegations do not continue to increase in the near
future.
6. Military Defense Counsel Face a Training, Funding, and Experience
Disadvantage
Another overarching problem with the military justice system is that
military defense counsel organizations face a training, funding, and expe-
rience disadvantage when compared with trial counsel organizations. As
a matter of fundamental “fairness and due process” and as a means of
ensuring system legitimacy, it is vital that Service members accused of se-
rious sexual assaults be provided with experienced,267 adequately trained
defense counsel,268 particularly because they will almost inevitably be
faced with a general court-martial.269 “[A]n obvious imbalance between
4485, 113th Cong. (2014), and the FY 2015 National Defense Authorization Act. See REP. OF THE
RESPONSE SYS. PANEL, supra note 1, at 58 n.12.
262. Victim’s Protection Act of 2014, S. 1917, 113th Cong. § 3(c)(1) (2014).
263. Id. § 3(c)(2).
264. See, e.g., DEP’T OF THE ARMY, ARMY REGULATION 623–3, EVALUATION REPORTING SYS. 1-
8(a)(2) (Mar. 31, 2014), http://www.apd.army.mil/jw2/xmldemo/r623_3/main.asp.
265. Paul Kane, Up, Up and Out, N.Y. TIMES (Apr. 20, 2009), http://www.nytimes.com/2009/04/21/
opinion/21kane.html?_r=0.
266. Id.
267. For a discussion of the necessity of experienced trial counsel and supervisors, see Major Jef-
frey A. Gilberg, The Secret to Military Justice Success: Maximizing Experience, 220 MIL. L. REV. 1
(2014).
268. REP. OF THE RESPONSE SYS. PANEL, supra note 1, at 8.
269. See supra Part II.C.
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230 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
prosecution and defense resources” is particularly problematic now given
the “substantial additional efforts in recent years to enhance prosecution
capabilities.”270
Unlike most civilian public defender organizations, military defense
counsel organizations do not have independent budgets.271 Rather, they
are funded by sources such as the convening authority and their branch’s
legal command.272 As a result, defense organizations are neither compa-
rably funded with trial counsel nor adequately funded.273 Consider, for
example, branches that report their yearly spending per attorney.274 The
Army spends $1,407.61 per trial counsel per year, but only $1,033.36 per
defense counsel per year.275 The Marine Corps spends $2,778 per trial
counsel per year, but only $1,870 per defense counsel.276 And the Air
Force spends $2,105 per trial counsel per year, but only $1,870 per de-
fense counsel.277
Given the lack of funding, defense offices are not adequately staffed
with personnel.278 Moreover, as a direct result of this funding deficit,
some defense counsel have reported that the training they receive is “in-
sufficient and unequal” to that received by trial counsel.279 Indeed, not all
military defense counsel have trial experience before handling their first
sexual assault case.280 And, while the DoD gave trial counsel organiza-
tions Special Victim Capability,281 it established no analogous capabili-
ties—like JAGs “solely dedicated to defending those accused of sexual
assault offenses”—for defense counsel organizations.282 Whatever prob-
lems would ordinarily result from these difficulties are amplified in the
context of adult sexual assault cases because not only will these cases
270. Id.
271. Id. at 38.
272. Id.
273. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 21–25; see REP. OF THE
RESPONSE SYS. PANEL, supra note 1, at 8, 38, 158, 161–62.
274. Differences in size between defense and prosecutorial organizations may well account for
some of the disparity in highly qualified experts and annual budgets. See id. at 114. But that does not
explain the difference in the standard amount spent per counsel per year.
275. REP. OF THE RESPONSE SYS. PANEL, supra note 1, at 158, 161; REP. OF THE COMPARATIVE
SYS. SUBCOMM., supra note 1, at 137.
276. REP. OF THE RESPONSE SYS. PANEL, supra note 1, at 158, 162; REP. OF THE COMPARATIVE
SYS. SUBCOMM., supra note 1, at 137.
277. REP. OF THE RESPONSE SYS. PANEL, supra note 1, at 158, 161; REP. OF THE COMPARATIVE
SYS. SUBCOMM., supra note 1, at 137.
278. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 21, 25–26; see REP. OF THE
RESPONSE SYS. PANEL, supra note 1, at 8.
279. REP. OF THE RESPONSE SYS. PANEL, supra note 1, at 38; REP. OF THE COMPARATIVE SYS.
SUBCOMM., supra note 1, at 21–25.
280. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 21, 136 (“Counsel interviewed
during site visits and at meetings stated that defense counsel tour lengths may range from 12-24
months. Some defense counsel said they were assigned adult sexual assault cases during their first tour
of duty, when they had no prior litigation experience. . . . Some defense counsel told the Response
Systems Panel and the Subcommittee that because they do not have independent budgets, their train-
ing opportunities were insufficient and unequal to their trial counsel counterparts.”).
281. See supra Part III.B.3.
282. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 154–55.
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disproportionately go to trial,283 but specialized training is also needed to
handle them properly.284
C. The Unfairness to the Accused Inherent in the Current
Pretrial Process
While the previous Subpart analyzed the overarching problems with
the military justice system in the context of sexual assault prosecutions,
this Subpart focuses on the unfairness to the accused inherent in the cur-
rent pretrial process.
1. Pre-Referral Defense Requests for Witnesses, Depositions, and
Evidence Must Go Through Trial Counsel and the Convening
Authority
In civilian justice systems, a judge or magistrate controls all prelimi-
nary trial proceedings from the earliest of a defendant’s arrest or indict-
ment.285 In stark contrast, the military justice system does not allow mili-
tary judges to become involved until after charges have been referred.286
Perhaps this difference would not be troubling if defense counsel and tri-
al counsel had to satisfy similar requirements and had “equal opportunity
to obtain witnesses and evidence.”287 But this is not the case.
Defense counsel must submit requests for experts, witnesses, depo-
sitions, documents, and other evidence, as well as justifications for such
requests, through trial counsel and the SJA to the convening authority.288
Justifications cannot be merely perfunctory. Defense counsel must
“submit to the trial counsel a written list of witnesses whose production
by the Government the defense requests” and “a synopsis of the ex-
pected testimony sufficient to show its relevance and necessity” or “why
the witness’ personal appearance will be necessary.”289 Further, depend-
ing on the practices of each branch, trial counsel alone may, as the con-
vening authority’s representative, grant or deny witness requests,
although a convening authority must decide expert witness requests.290
While defense counsel can appeal any adverse decision to a military
judge,291 defense counsel cannot do so until their clients’ cases have been
referred and will not be able to do so by using an ex parte procedure.292
This means that trial counsel can be present when defense counsel ex-
283.
See supra Part III.B.4.
284.
REP. OF THE RESPONSE SYS. PANEL, supra note 1, at 38.
285.
REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 29.
286.
See supra Part II.C.
287.
MANUAL FOR COURTS-MARTIAL, supra note 40, at 703(a).
288.
See, e.g., MANUAL FOR COURTS-MARTIAL, supra note 40, at 703(c)(2), (f)(3); see also REP.
OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 184.
289. MANUAL FOR COURTS-MARTIAL, supra note 40, at 703(c)(2)(A)–(B)(i–ii).
290. MANUAL FOR COURTS-MARTIAL, supra note 40, at 703(c)(2), (d); REP. OF THE
COMPARATIVE SYS. SUBCOMM., supra note 1, at 183.
291. See, e.g., MANUAL FOR COURTS-MARTIAL, supra note 40, at 703(d).
292. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 29, 183.
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232 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
plains the defense’s theory of relevance.293 No civilian jurisdiction permits
a similar practice.294
Trial counsel, on the other hand, may secure favorable witnesses
and resources without having to provide defense counsel with an expla-
nation.295 Trial counsel simply obtain witnesses that they believe to be
“relevant and necessary.”296 They need not submit requests to anyone for
approval nor demonstrate relevance to anyone.
Moreover, trial counsel have the advantage of nationwide subpoena
power—a power that is rarely subjected to judicial oversight.297 Defense
counsel, however, have no subpoena power,298 unlike some civilian public
defenders.299
Ultimately, these practices compel defense counsel to disclose more
information to the government more quickly than civilian public defend-
ers, and they force defense counsel to reveal information about their
theory of the case and witnesses that would otherwise be confidential.300
Consequently, the “duty and ability” of defense counsel “to provide con-
stitutionally effective representation to their clients” is stymied.301 As the
Comparative Systems Subcommittee aptly noted, these practices create
an “obvious imbalance” and “a valid perception that the government
[alone] can get whatever it wants whenever it wants in terms of re-
sources, experts and evidence to prove its case, regardless of the cost,” as
well as imposing “a barrier to effective defense at courts-martial.”302
2. Defense Counsel Have No Independent, Deployable Investigators
Civilian justice systems typically provide public defenders with their
own investigators.303 Investigators are a critical resource because they
“contribute to the efficient disposition of cases” and allow defense coun-
sel to focus on zealously defending their clients.304 In offices with investi-
gators, the investigators—not defense counsel—have the primary burden
of “locating and interviewing witnesses, finding appropriate experts, and
finding services to assist the defense in complying with court ordered
treatment or services.”305 Dedicated investigators are particularly invalu-
able in sex crime cases. As Lisa Wayne of the National Association of
Criminal Defense Lawyers stated, “I don’t know a lawyer in the country
293. Id.
294. Id. at 183.
295. Id. at 184; see generally MANUAL FOR COURTS-MARTIAL, supra note 40, at 703.
296. MANUAL FOR COURTS-MARTIAL, supra note 40, at 703(c)(1).
297. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 30.
298. See id. at 184.
299. Id. at 30.
300. Id. at 183.
301. Id.
302. Id. at 184–85.
303. Id. at 156.
304. Id. at 156–57.
305. Id. at 156.
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No. 1] JUSTICE IS NO LONGER BLIND 233
that does sex offenses without an investigator, except in the military. Re-
ally, there is no such thing.”306
Currently, however, military defense counsel are limited to request-
ing investigators from the convening authority or, after referral, the mili-
tary judge—requests that are typically denied.307 But even if the defense
is granted an investigator, whatever information the investigator uncov-
ers is not protected by either the work product doctrine or attorney-
client privilege.308 This, of course, means that the prosecution can access
and use any information that an investigator uncovers, including incrimi-
nating evidence.309 Because this puts defense counsel in an untenable po-
sition, they are likely to continue performing their own investigations.
This is not a satisfactory alternative. JAGs are trained in the law,
not in the latest investigative techniques, and they lack many investiga-
tive resources.310 Moreover, investigations typically entail interviewing
witnesses, but civilian defense counsel “never interview witnesses” be-
cause “[t]he ABA Standards are clear . . . [i]t is unethical.”311 After all,
defense counsel would be placed “in ethically compromising circum-
stances if he or she [became] the only witness to exculpatory or incon-
sistent statements.”312
D. Trial and Sentencing Unfairness to the Accused
The accused in a sexual assault case is also confronted with signifi-
cant inequities during the trial and sentencing phases of a court-martial.
1. The Jury Pool is Often Tainted
When going to trial, an accused has good cause to be concerned that
her jury pool has been tainted by mandatory313 sexual assault prevention
training. It has become increasingly difficult to seat a member panel in a
sexual assault case, primarily because “[t]he heavy emphasis on sexual
assault prevention training has . . . in some instances, influenced the pool
of panel members” and caused them “to draw erroneous legal
conclusions.”314
306. Id. at 158 n.757 (citing Response Systems to Adult Sexual Assault Crimes Panel: Hearing on
Training to Prosecute & Defend Sexual Assault Cases Before Coop. Sys. Subcomm., United States
Dep’t of Def. 230 (Jan. 7, 2014) (testimony of Lisa Wayne, NACDL)).
307. Id. at 26.
308. Id. at 158.
309. Id.
310. Id.
311. Id. at 158 n.757 (citing Response Systems to Adult Sexual Assault Crimes Panel: Hearing on
Training to Prosecute & Defend Sexual Assault Cases Before Coop. Sys. Subcomm., United States
Dep’t of Def. 241 (Jan. 7, 2014) (testimony of Lisa Wayne, NACDL)).
312. Id. at 158.
313. See, e.g., Services’ Responses to Request for Information #84, supra note 233, at 5 (Defense
Motion to Dismiss (Unlawful Command Influence), United States v. Oscar) (“LTG Campbell brought
in the top officers and enlisted leaders from all major Army units in Europe for the [sexual assault]
summit.”).
314. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 195.
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234 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
It is, of course, a positive development when good sexual assault
prevention training takes root, but this training is often problematic.
First, the training is apparently instilling at least some legally relevant
misinformation.315 For example, a particularly widespread misperception
stemming from sexual assault prevention training is the idea “that a per-
son cannot legally consent to sexual activity if he or she has consumed
even one alcoholic beverage.”316
Second, as seen in cases like United States v. Sinclair317 and United
States v. Oscar,318 jury pools are often compromised when course leaders
and senior officers emphasize the “seriousness” of sexual offenses, as
well as the “expectation of offender accountability.”319 Given these prob-
lems, it is unsurprising that branches such as the Marine Corps report “a
significant number of court-martial members were dismissed due to their
answers during voir dire.”320
2. Sentencing Procedures Consistently Diverge from Those in Most
Civilian Jurisdictions to the Detriment of the Accused
Sentencing procedures consistently diverge from those in most civil-
ian jurisdictions. As the chart below demonstrates,321 while one or two
features are equally or more protective, in virtually every instance, these
differences are to the accused’s detriment.
315. Id.
316. Id.
317. See supra Part III.A.
318. Services’ Responses to Request for Information #84, supra note 233, at 1–12 (Defense Motion
to Dismiss (Unlawful Command Influence), United States v. Oscar).
319. Id. at 7–18.
320. Id. at 2.
321. This chart is adapted from REP. OF THE RESPONSE SYS. PANEL, supra note 1, at 138. See Part
II.C for citations to the relevant Rules for Courts-Martial.
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No. 1] JUSTICE IS NO LONGER BLIND 235
FIGURE 5: COMPARISON OF SENTENCING PROCEDURES IN
CIVILIAN COURTS AND COURTS-MARTIAL
Most Civilian Jurisdictions Military
Number of members in non- Usually 12 jurors Does not require 12 mem-
capital cases bers; Ranges from 3 to 12
depending on type of court-
martial
Jury verdict requirement for Unanimous verdict in all cas- Unanimous verdict in capi-
findings es tal cases; Usually 2/3 vote to
convict by secret written
ballot
Time between verdict and Often delayed several weeks Almost immediate
sentencing pending the completion of
presentence report
Who determines sentence in Judge determines sentence in Sentence is determined by
non-capital cases? noncapital cases military judge or by mem-
bers (jury) based on choice
of the accused:
• Trial before members,
sentencing by mem-
bers
• Trial by judge alone,
sentencing by judge
• Plead guilty, sentenc-
ing by members
• Plead guilty, sentenc-
ing by judge
The accused does not have
the option to select trial by
members and then, if con-
victed, sentencing by mili-
tary judge
Sentences per count or uni- Receives sentence on each Unitary sentencing, mean-
tary count for which he/she is ing one overall sentence
convicted
Sentencing by members/jury Unanimous verdict in capital Unanimous verdict in capi-
cases; Not applicable in most tal cases; 3/4 vote for sen-
other cases because judge tence of life imprisonment
determines sentence in most or confinement for more
jurisdictions than ten years; 2/3 vote for
any other sentence
Sentencing guidelines 20 States, District of Colum- Each offense carries maxi-
bia, and federal courts have mum penalty
sentencing guidelines to in-
form sentencing process
Clemency Governor may grant pardon Convening authority may
at end of process set aside finding of guilt
only in limited circumstanc-
es, and may not do so for
“qualifying offenses”
Rights at Service clemency
parole boards and right to
petition President for clem-
ency
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236 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
Appeals Process Normally not granted auto- All sentences with punitive
matic review; offender must discharge or one year or
file for review at next higher greater confinement receive
court automatic appellate court
review; all other cases au-
tomatically reviewed by
judge advocate
For example, the burden that must be met to convict the accused is
lower in the military than it is in most civilian jurisdictions because a
unanimous member verdict is only required in capital cases.322
Further, while civilian courts hold sentencing hearings typically
“weeks or months after trial or acceptance of a guilty plea,” sentencing in
the military justice system occurs virtually immediately after a verdict.323
This does have the beneficial effects of allowing the military to move
swiftly, punishing and removing offenders from their units, and allowing
panel members to return to their duties.324 But the loss of this extra time
also makes it more difficult for the accused to gather relevant infor-
mation and witnesses that could help reduce their sentence—a fact of
particular concern because defense organizations are already short on
personnel and do not have their own investigators.325
Moreover, while most civilian jurisdictions hand down a sentence
for each count of which an offender is convicted, the military employs
unitary sentencing, adjudging one sentence for all counts combined.326
While this promotes efficiency and is a simpler method of sentencing,
“this procedure may lead to less careful consideration of each and every
offense of conviction and disparity in outcomes.”327
Unitary sentences are even more problematic in light of the fact
that Congress has greatly restricted the convening authority’s clemency
power in Article 120 cases.328 A convening authority is no longer allowed
to “provide relief from forfeitures of pay to dependents of convicted Ser-
vice members,” and it is unclear whether the convening authority may
still grant clemency to a Service member who is convicted of both Article
120 offenses and other offenses.329 Even more troubling is the fact that
the change to Article 60 effectively prevents any post-trial relief from be-
ing granted to convicted Service members who are not punitively dis-
charged or confined for one year. This is because the only way such Ser-
322. MANUAL FOR COURTS-MARTIAL, supra note 40, at 921.
323. See MANUAL FOR COURTS-MARTIAL, supra note 40, at 1001(a)(2); REP. OF THE
COMPARATIVE SYS. SUBCOMM., supra note 1, at 217.
324. MANUAL FOR COURTS-MARTIAL, supra note 40, at 1001–07; see also REP. OF THE
COMPARATIVE SYS. SUBCOMM., supra note 1, at 218.
325. See supra Parts III.B.6, C.2.
326. MANUAL FOR COURTS-MARTIAL, supra note 40, at 1006(c); REP. OF THE COMPARATIVE
SYS. SUBCOMM., supra note 1, at 218.
327. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 219.
328. National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1702(b), 127
Stat. 955-58 (2014); Spilman, supra note 126.
329. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 38.
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No. 1] JUSTICE IS NO LONGER BLIND 237
vice members could access appellate review would be through an Article
69 review requested by the Office of the Judge Advocate General.330
Finally, unlike forty-four states and the federal criminal justice sys-
tem, the military permits panel members to adjudge a sentence.331 It is
generally accepted that members’ sentences “vary widely” and are “un-
predictable.”332 Unfortunately, due to the absence of “uniform, offense-
specific sentencing data,” this understanding cannot be empirically veri-
fied.333 Nonetheless, this intuition is consistent with reported experi-
ence.334 Moreover, widely divergent member sentences are likely inevita-
ble given the lack of expertise and information that members are given.335
Panel members have neither training nor experience in sentencing and
receive few instructions.336 As Major General Kenneth Hodson, a former
Army Judge Advocate General, noted: “I have never had a convening
authority complain about a sentence imposed by a judge,” but
“[s]entences adjudged by court members are adjudged pretty much in ig-
norance, and they tend to vary widely for the same or similar offenses.
They amount almost to sentencing by lottery.”337
At least one statistical analysis in the civilian context supports this
notion. It demonstrated that jury sentences are not only harsher than
judge-imposed sentences, but also they are more “erratic” and unrelia-
ble.338 It is therefore unsurprising that the American Bar Association has
determined that the “[i]mposition of sentences is a judicial function[;] . . .
330. Id.
331. See MANUAL FOR COURTS-MARTIAL, supra note 40, at 1001–07.
332. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 222 & n.1014.
333. Id. at 220.
334. Id. at 222.
335. For a detailed discussion of why panel sentencing is problematic, see, e.g., Captain Megan N.
Schmid, Military Justice Edition: This Court-Martial Hereby (Arbitrarily) Sentences You: Problems
with Court Member Sentencing in the Military and Proposed Solutions, 67 A.F. L. REV. 245, 267–68
(2011); see also Major Steven M. Immel, Development, Adoption, and Implementation of Military Sen-
tencing Guidelines, 165 MIL. L. REV. 159 (2000); Colin A. Kisor, The Need for Sentencing Reform in
Military Courts-Martial, 58 NAVAL L. REV. 39 (2009); James K. Lovejoy, Abolition of Court Member
Sentencing in the Military, 142 Mil. L. Rev. 1, 29–37 (1994).
336. Id. at 224; see also United States v. Rinehart, 8 C.M.A. 402, 406 (1957) (stating that members
may not “rummage through a treatise on military law”); DEP’T OF THE NAVY, 2014 NAVY-MARINE
CORPS ELECTRONIC MILITARY JUDGES’ BENCHBOOK, 2–5–20 SENTENCING INSTRUCTIONS (2014)
(“There are several matters which you should consider in determining an appropriate sentence. You
should bear in mind that our society recognizes five principal reasons for the sentence of those who
violate the law. They are rehabilitation of the wrongdoer, punishment of the wrongdoer, protection of
society from the wrongdoer, preservation of good order and discipline in the military, and deterrence
of the wrongdoer and those who know of (his) (her) crime(s) and (his) (her) sentence from commit-
ting the same or similar offenses. The weight to be given any or all of these reasons, along with all oth-
er sentencing matters in this case, rests solely within your discretion.”), available at https://
www.jagcnet.army.mil/Portals/USArmyTJ.nsf/(JAGCNetDocID)/Electronic+Benchbook?OpenDocu
ment; James A. Young, III, Revising the Court Member Selection Process, 163 MIL. L. REV. 91, 111
(2000).
337. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 222 n.1014.
338. Robert A. Weninger, Jury Sentencing in Noncapital Cases: A Case Study of El Paso County,
Texas, 45 WASH. U. J. URB. & CONTEMP. L. 3, 37–40 (1994).
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238 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
[t]he jury’s role in a criminal trial should not extend to determination of
the appropriate sentence.”339
IV. RECOMMENDATION
While Part III noted the procedural due process problems that the
current system has created in an Article 120 case, this Part argues that,
given these problems, the military justice system should be rebalanced by
strengthening protections for the accused. This Note does not purport to
provide an exhaustive list of corrective measures.340 Instead, it focuses on
four changes that would significantly reduce the risk of unlawful com-
mand influence, enhance system legitimacy, and strengthen an accused’s
due process rights.341
A. Defense Organizations Must Be Adequately Resourced with Funds
and Personnel, Including Independent, Deployable Investigators
To ensure the military justice system’s fairness and legitimacy, de-
fense organizations must be sufficiently resourced with funds and per-
sonnel so that they can effectively and efficiently represent accused Ser-
vice members, who are entitled to free, independent military defense
counsel.342 Specifically, defense organizations must have budgets that can
support adequate training for defense counsel and allow these organiza-
tions to be staffed with independent investigators. Because units may be
deployed overseas, these investigators must also be deployable. There is
a general consensus that this is necessary, although, inexplicably, this
consensus has not yet been acted upon.343
To ensure adequate funding, defense organizations should have
their own budgets. It may be possible to ensure adequate resourcing by
letting defense organizations continue to receive funding from other
sources, such as their branch legal command or a convening authority,
and roughly equalizing their budgets with those of trial counsel.344 Alter-
339. AM. BAR ASSOC., ABA STANDARDS FOR CRIMINAL JUSTICE: SENTENCING, STANDARD 18-
1.4 (3d ed. 1994), available at http://www.americanbar.org/publications/criminal_justice_section_
archive/crimjust_standards_sentencing_blk.html#1.4.
340. Many additional changes could be made beyond those recommended here. For instance,
R.C.M. 702 could be clarified so that defense counsel has the right to conduct a deposition of an al-
leged victim that chose not to testify at an Article 32 hearing. Member verdicts could be required to be
unanimous in all cases. Article 60 could be re-amended to return at least some of the convening au-
thority’s clemency power. And judges with the power to make a binding dismissal of charges could
preside over Article 32 hearings. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 30.
341. Additional guidelines and training for commanders will also advance these goals. See Mitsie
Smith, Note, Adding Force Behind Military Sexual Assault Reform: The Role of Prosecutorial Discre-
tion in Ending Intra-Military Sexual Assault, 19 BUFF. J. GENDER L. & SOC. POL’Y 147 (2011).
342. An accused is entitled to a free defense counsel during a pretrial confinement hearing, Arti-
cle 32 investigation, court-martial, administrative separation board, and any appeals E.g., Defense /
Personal Representative Services Addendum, U.S. NAVY JUDGE ADVOCATE GENERAL CORPS, http://
www.jag.navy.mil/legal_services/defense_services_addendum.htm#accused_right_counsel (last visited
Nov. 19, 2015).
343. See REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 154–58.
344. See id. at 154.
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nately, adequate resourcing could be ensured by branch Secretaries.345
Yet these last two approaches do not further the independence of de-
fense organizations, unlike the first approach, which some defense coun-
sel specifically prefer.346 Moreover, giving defense organizations their
own budgets would create a stronger public perception of fairness, par-
ticularly because many civilian public defender offices have their own
budgets.347
Defense offices must also be staffed with independent, deployable
investigators. Two alternatives have been proposed: (1) investigators
could be placed in defense counsel offices, but their supervisory and
evaluation chains would remain in trial counsel organizations;348 or (2)
civilian investigators could be hired by defense organizations as either
full time employees or contractors.349 While either option would be
workable, the second one is preferable because it furthers the defense’s
independence from prosecutorial control and better promotes the per-
ception of fairness.
B. Giving Dispositional Authority to Independent Prosecutors
An even more fundamental change is needed: giving dispositional
authority in Article 120 cases to independent prosecutors, not convening
authorities.350 This would mean that, after conducting an Article 32 hear-
ing, investigating officers would submit their reports to a prosecutor who
would make a binding decision as to whether charges should be dis-
missed or the case should be referred to court-martial, non-judicial pun-
ishment, or an administrative separation board. This is necessary because
“[o]nly a system that does not involve the commander in the most serious
cases can effectively minimize [unlawful command influence] in the mili-
tary justice system.”351
Theoretically, JAGs or military judges could be given dispositional
authority.352 This solution, however, does nothing to combat the preva-
lence, nor reduce the risk, of unlawful command influence because JAGs
and judges are still military officers subject to the chain of command,
U.C.M.J., and military promotional structure. As a matter of fact, far
from being immune from unlawful command influence problems, mili-
tary attorneys can actually create them, as United States v. Sinclair and
345. See id. at 154.
346. See id. at 156.
347. Id. at 158.
348. Id.
349. Id.
350. See supra Part II.C. For a strong defense and criticism of the commander-centric model, see
generally Joseph W. Bishop, Jr., The Case for Military Justice, 62 MIL. L. REV. 215, 216–21 (1973); Mi-
chael I. Spak & Jonathon P. Tomes, Courts-Martial: Time to Play Taps, 28 SW. U. LAW REV. 481, 512–
34 (1999).
351. Murphy, supra note 27, at 152.
352. See id. at 134. Similarly, Senator Kirsten Gillibrand’s failed Military Justice Improvement
Act, S. 967, 113th Cong. (2013), “called for the removal of certain offenses from command authority.”
Id. at 132.
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240 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
other cases demonstrate.353 For the same reasons, it would be problematic
to give dispositional authority to anyone subject to the military chain of
command.
The better solution, then, would be to remove dispositional authori-
354
ty from DoD personnel altogether. Department of Justice (“DOJ”)
prosecutors would likely be the best candidates to receive this authority.
At least some Assistant U.S. Attorneys have extensive experience prose-
cuting sex offenses.355 Further, it is eminently feasible for the DoD and
DOJ to work together, as JAGs often serve as Special Assistant U.S. At-
torneys.356 And Congress has already expressed a desire to have them
work closely together on sexual assault issues. For example, VPA § 5
would require DoD and DOJ personnel to extensively collaborate on
preventing and responding to sexual assaults.357
Objections to this change are not insurmountable. True, giving dis-
positional authority to outside prosecutors could create some difficulty in
prosecuting Article 120 offenses when units are deployed. Yet DOJ
prosecutors would only be making a referral decision based on a written
record. And it is difficult to imagine plausible scenarios wherein a unit
lacks the ability to conduct outside communications, but charges against
a Service member must be preferred immediately and an Article 32 hear-
ing must also be conducted without delay.
Some might also object to treating Article 120 cases differently than
other cases in this regard. But, patently, the military and Congress al-
ready treat sexual assault cases differently.358 Moreover, it makes sense to
treat these cases differently because, as Part III demonstrated, Article
120 cases carry unusual risks of problems such as overprosecution and
unlawful command influence.359
The most serious objection to removing dispositional authority from
convening authorities is the fact that Congress is clearly loath to interfere
with a commander’s prosecutorial discretion. Most prominently, the Sen-
ate recently considered, and narrowly rejected, a bill that would have
removed prosecutorial discretion from convening authorities and given it
to JAGs.360
Congress is certainly correct to proceed cautiously when deciding
whether to remove prosecutorial discretion from commanders. Com-
353. See supra Part III.A.
354. Concededly, this might create difficulties with budget coordination.
355. See, e.g., U.S. Attorney’s Office, D.C., Sex Offense and Domestic Violence Section, JUSTICE.
GOV, http://www.justice.gov/usao/dc/divisions/superior_court_sex_offense_dv.html (last visited Oct. 12,
2015).
356. See, e.g., U.S. NAVY JAG CORPS, GUIDE TO THE U.S. NAVY JAG CORPS 7, available at http://
www.jag.navy.mil/careers_/careers/docs/JAG_Guide(May%202012).pdf.
357. Victim’s Protection Act of 2014, S. 1917, 113th Cong. § 5 (2014).
358. See supra Part III.B.3.
359. See supra Part III.B.4–5.
360. 160 CONG. REC. S1374 (daily ed. Mar. 10, 2014) (statement of Sen. Barbara Mikulski); 160
CONG. REC. S1348–49 (daily ed. Mar. 6, 2014) (preventing an up-or-down vote on S. 1752 by a vote of
55–45); Niels Lesniewski, Senate Blocks Gillibrand’s Military Sexual-Assault Bill, ROLL CALL (Mar. 6,
2014), http://blogs.rollcall.com/wgdb/senate-votes-on-dueling-sexual-assault-proposals/?dcz=.
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manders must maintain good order and discipline within their units and
historically have played essential roles in effectuating change in their
commands during periods of military cultural change.361 Removing prose-
cutorial discretion could fundamentally impair these functions. There-
fore, this Note only argues that dispositional authority—the most prob-
lematic area—should be carved off from a commander’s authority. The
convening authority would otherwise generally362 be permitted to retain
his or her historic role in sexual assault cases.
Additionally, the arguments noted above are essentially arguments
about how to best preserve military effectiveness and effectuate desirable
cultural norms. While important, such considerations alone should not
determine how a justice system operates when the system is creating
problems of a constitutional magnitude. As Senator Kirsten Gillibrand
noted, Congress must remember that, “at the end of the day, you want to
have as close to an unbiased system as possible. . . . [You] want justice to
be blind. That’s the whole point. And in today’s system, it is not blind.”363
Unfortunately, Congress is not yet concerned with injustice to an
accused. After killing the bill that would have removed the convening au-
thority’s prosecutorial discretion, the Senate then passed364—and the
House considered365—a bill that “provid[ed] additional support to vic-
tims.”366 The Senate had one overriding reason for its policy choice: “We
are here to protect victims today. We certainly want a system with due
process, but this is about having more victims coming forward.”367 The
Senate specifically noted that, to ensure justice, Israel, the United King-
dom, Canada, and Australia had removed the convening authority’s
prosecutorial discretion in cases comparable to our Article 120 cases and
placed it in the hands of trained military prosecutors.368 Those systems
removed prosecutorial discretion from the chain of command to help
ameliorate unlawful command influence problems and protect the rights
of the accused.369 U.S. legislators were distinctly unimpressed by these ra-
361. REP. OF THE ROLE OF THE COMMANDER SUBCOMM., supra note 1, at 2, 101. For a detailed
discussion of the pros and cons of changing the commander’s role in sexual assault cases, see id. at
91–114.
362. The commander should, however, have his pretrial authority to make decisions on defense
requests for witnesses and other evidence curtailed. See infra Part IV.B.
363. REP. OF THE ROLE OF THE COMMANDER SUBCOMM., supra note 1, at 96–97.
364. 160 CONG. REC. S1377 (daily ed. Mar. 10, 2014).
365. All Actions: S.1917—113th Congress (2013-2014), CONGRESS.GOV, https://www.congress.
gov/bill/113th-congress/senate-bill/1917/all-actions (last visited Oct. 12, 2015).
366. 160 CONG. REC. S1374 (daily ed. Mar. 10, 2014) (statement of Sen. Barbara Mikulski).
367. 160 CONG. REC. S1348 (daily ed. Mar. 6, 2014) (statement of Sen. Kelly Ayotte).
368. REP. OF THE ROLE OF THE COMMANDER SUBCOMM., supra note 1, at 100; see Lindsay Nicole
Alleman, Who is in Charge, and Who Should Be? The Disciplinary Role of the Commander in Military
Justice Systems, DUKE J. COMP. & INT’L L. 169 (2006) (citing the National Institute of Military Justice
commission that surveyed military justice systems in U.K, Australia, India, Ireland, Mexico, South
Africa, Canada, and Israel).
369. REP. OF THE ROLE OF THE COMMANDER SUBCOMM., supra note 1, at 101, 176.
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242 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
tionales.370 Presently, then, Congress remains firmly focused on increas-
ing reporting and prosecutions of sexual assaults and protecting alleged
victims, as opposed to protecting the rights of the accused.371
Yet, given the trends of increased reporting and prosecutions of mil-
itary sexual assaults,372 Congress may soon become amenable to further
protecting the rights of the accused, especially if reform efforts are fo-
cused on only removing dispositional authority.
Change is particularly likely to occur if military leaders do not op-
pose it—something they appear increasingly willing to do. For example,
General Mark Welsh, the U.S. Air Force Chief of Staff, told reporters
that he was “open” to such a plan.373 Further, when commenting on the
defeat of the Senate bill that would have removed prosecutorial discre-
tion from the chain of command, General Martin Dempsey, the Chair-
man of the Joint Chiefs of Staff, stated that if the military is unable to
make a demonstrable difference in sexual assaults within a year, “I’m not
going to fight [prosecutorial discretion] being taken away from us.”374
C. Military Judges Should Be Given the Authority to Rule on Pretrial
Matters from the Earliest of Pretrial Confinement or Preferral of Charges
The third change that the military justice system needs to make is to
give military judges the authority to rule on pretrial matters from the ear-
liest of pretrial confinement or preferral of charges.
Expanding the role of the military judge has long been viewed as a
desirable change.375 Most notably, a 2004 study ordered by the Army
Judge Advocate General recommended that military judges should play
a major role in pre-referral proceedings, concluding that “a [military
judge’s] supervisory role earlier in the military justice process . . . will
370. 160 CONG. REC. S1341 (daily ed. Mar. 6, 2014) (statement of Sen. Carl Levin) (stating that
“when [our military] allies made the change—not to protect victims but to increase the rights of the
accused—it did not lead to any increase in the reporting of assaults”).
371. REP. OF THE ROLE OF THE COMMANDER SUBCOMM., supra note 1, at 113.
372. DEP’T OF DEFENSE ANNUAL REPORT ON SEXUAL ASSAULT IN THE MILITARY: FISCAL YEAR
2013, supra note 5, at 2–5 (citing the National Institute of Military Justice commission’s survey of mili-
tary justice systems in the U.K, Australia, India, Ireland, Mexico, South Africa, Canada, and Israel).
373. Jennifer Hlad, Welsh: Open to All Options to Stop Military Sexual Assault, STARS & STRIPES
(May 17, 2013), http://www.stripes.com/welsh-open-to-all-options-to-stop-military-sexual-assault-1.22
1302.
374. General Martin E. Dempsey, Gen. Dempsey’s Bloggers Roundtable Interview on Sexual As-
sault in the Military, JOINT CHIEFS OF STAFF (Apr. 10, 2014), http://www.jcs.mil/Media/Speeches/
tabid/3890/Article/571952/gen-dempseys-bloggers-roundtable-interview-on-sexual-assault-in-the-mili
tary.aspx; Larisa Epatko, Military Deserves ‘Scrutiny’ on Sexual Assaults, General Dempsey Says, PBS
(Mar. 7, 2014), http://www.pbs.org/newshour/rundown/military-deserves-scrutiny-sexual-assaults-gen
eral-dempsey-says/.
375. See, e.g., Frederic I. Lederer & Barbara S. Hundley, Needed: An Independent Military Judici-
ary–A Proposal to Amend the Uniform Code of Military Justice, 3 WM. & MARY BILL RTS. J. 629, 638–
39 (1994); U.S. DEP’T OF THE ARMY, MILITARY JUSTICE REVIEW 1, 3 (2004) (on file with the
Response Systems Panel), available at http://responsesystemspanel.whs.mil/Public/docs/meetings/
Sub_Committee/20140312_ROC/Materials/02_Army_MilJusticeReview2004_ExecutiveSummary.pdf.
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likely enhance[] the fairness and efficiency of our system.”376 To effectu-
ate this, the study proposed the following amendment to the U.C.M.J.:
Upon preferral of charges or imposition of pretrial restraint, the
military judge shall exercise overall judicial supervisory authority
for all procedural aspects of the case. Under such procedural regu-
lations as may be prescribed by the Secretary concerned, this shall
include, but not be limited to, the authority to review confinement
decisions of military magistrates, to issue search authorizations, di-
rect the scientific testing of evidence, order inquiry into the mental
capacity or mental responsibility of the accused, and to issue no-
contact orders and other protective orders as appropriate.377
With light editing, this amendment could be used to ensure the sys-
tem’s fairness and protect the accused’s due process rights. First, as the
Comparative Systems Subcommittee aptly noted, “pretrial restraint”
should be replaced with “pretrial confinement” in order to avoid a rash
of motions that would waste valuable judicial resources any time that a
commander placed a liberty restriction on a Service member.378 Second, a
judge must expressly be given the authority to authorize requests and is-
sue subpoenas for experts, witnesses, documents, and other evidence, us-
ing ex parte proceedings when necessary.379 This would give defense
counsel the option of avoiding providing the convening authority or trial
counsel with confidential information that they would prefer not to
disclose.380
The limitations of this approach are not outweighed by its benefits.
True, this approach would increase the burdens on military judges sub-
stantially and may well require an expansion in size of the military trial
judiciary.381 But these pretrial procedures are critical aspects of cases.
Further, as a general matter, the proposed additional judicial responsibil-
ities are not unduly burdensome or civilian jurisdictions would not uni-
formly place them on judges.382 Surely, an expansion of the duties and
numbers of the trial judiciary is a small price to pay for ensuring an ac-
cused’s constitutionally guaranteed rights and building public trust in the
fairness and legitimacy of the military justice system.383
Giving military judges additional responsibilities and duties could
also be viewed as taking control and authority away from commanders,
trial counsel, and SJAs.384 But these changes would not automatically
strip commanders of their authority and control. They would simply pro-
vide an elective judicial bypass.385 Moreover, as Part III explained, the
376. U.S. DEP’T OF THE ARMY, MILITARY JUSTICE REVIEW, supra note 363, at 3.
377. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 181–82 (citations omitted).
378. Id. at 182 n.831.
379. See id. at 183, 185.
380. See supra Part III.C.1.
381. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 181.
382. See generally id.
383. See discussion supra Part III.C.
384. See REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 181.
385. Id. at 180.
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244 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
military justice system currently operates to an accused’s detriment in an
adult rape case.386 As a result, a truly neutral decision maker with “mean-
ingful oversight”387 capabilities is necessary to protect an accused’s due
process rights and counteract overzealous prosecution.
Finally, changing a military judge’s responsibilities would require
significant amendment to the Rules for Courts-Martial and several
U.C.M.J. Articles.388 For example, the rules and Articles regulating pre-
trial punishment,389 pretrial confinement,390 no-contact orders,391 inquiries
into mental capacity,392 contempt power,393 depositions,394 production of
witnesses and evidence,395 and the responsibilities of the military judge,396
would all have to be expanded.397 Yet this objection has little force given
the sweeping changes to sexual assault cases that Congress has recently
enacted.398 If the last three NDAAs can contain over one hundred new
requirements primarily benefiting an alleged victim,399 surely these few
Articles and rules can be changed in order to ensure fairness for the
accused.
D. Unitary Sentencing Should Be Eliminated and a Military Judge
Should Be the Sole Sentencing Authority in Noncapital Cases
The last change that this Note proposes is altering sentencing pro-
cedures to eliminate unitary sentencing and to make a military judge the
sole sentencing authority in noncapital cases.
1. Unitary Sentencing Should Be Discarded
Currently, the military justice system uses unitary sentencing, mean-
ing that the sentences for all specifications (counts) for which a Service
member is convicted are aggregated.400 The military, however, should im-
pose a sentence for each offense for which a Service member is found
guilty.401
386. See supra Part III.C.
387. See generally REPORT OF THE COMPARATIVE SYSTEMS SUBCOMMITTEE, supra note 1, at 181.
388. Id.
389. U.C.M.J. art. 13; MANUAL FOR COURTS-MARTIAL, supra note 40, at 304.
390. U.C.M.J. art. 10; MANUAL FOR COURTS-MARTIAL, supra note 40, at 305.
391. U.C.M.J. art. 13(a); see generally MANUAL FOR COURTS-MARTIAL, supra note 40, at 304(a),
305(a).
392. MANUAL FOR COURTS-MARTIAL, supra note 40, at 706.
393. U.C.M.J. art. 48, 66, 98; MANUAL FOR COURTS-MARTIAL, supra note 40, at 801, 809(a)(2).
394. MANUAL FOR COURTS-MARTIAL, supra note 40, at 702.
395. Id. at 703.
396. Id. at 801.
397. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 183.
398. See supra Part III.B.3.
399. EXEC. SUMMARY: REP. TO THE PRESIDENT OF THE UNITED STATES ON SEXUAL ASSAULT
PREVENTION AND RESPONSE, supra note 187, at 14.
400. See generally Jackson v. Taylor, 353 U.S. 569 (1957); United States v. Weymouth, 43 M.J.
329, 336 (C.A.A.F. 1995).
401. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 229.
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No. 1] JUSTICE IS NO LONGER BLIND 245
There are overwhelming advantages to abandoning unitary sentenc-
ing. First, it facilitates transparency because the sentencing authority
would “directly and publicly address . . . the punishment that fits a par-
ticular crime.”402 This is particularly desirable when an accused is charged
with a mixture of felony-level offenses (e.g., rape) and misdemeanor-
level offenses (e.g., underage drinking).403 A unitary sentence in such a
case could obscure whether a Service member was properly being held
accountable for a sexual assault.404
Second, this change could result in trials and charges that are more
focused.405 Essentially, “the legally relevant criminal transaction [would
be] given fuller attention in place of a series of charges that may confuse
or distract the trier of fact.”406
Additionally, this solves one of the problems resulting from Con-
gress restricting the convening authority’s clemency power in Article 120
cases.407 Because an accused is often convicted of an Article 120 offense
along with non-sexual offenses over which the convening authority still
has clemency power, it is unclear whether a convening authority may ex-
ercise its clemency power on non-sexual offenses if only one sentence is
adjudged for all counts.408 If the sentences were separate, however, the
convening authority could clearly exercise its authorized clemency power
on non-Article 120 offenses.
Moreover, dispensing with unitary sentencing could reduce the
number of cases that an appellate court remands for a sentencing rehear-
ing.409 These rehearings burden victims because they must appear at
them, which can prevent emotional closure for these individuals.410 They
can also impose large systemic costs because rehearings may “be time
consuming, costly and logistically challenging because witnesses move,
deploy, and separate from the Service.”411
Concededly, the Service branches generally oppose this change, ar-
guing that it would complicate sentencing and that more studies of its po-
402. Services’ Responses to Request for Information #149, RESPONSE SYSTEM PANEL (Apr. 11,
2014), available at http://responsesystemspanel.whs.mil/Public/docs/Background_Materials/Requests_
For_Information/RFI_Response_Q149.pdf.
403. Id.
404. See id.
405. Id.
406. Id.
407. National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1702(b), 127
Stat. 672 (2013). Admittedly, however, this would not solve all of the likely unintended results of Con-
gress altering Article 60. Unless Congress re-amended Article 60, a convening authority would not be
able to “provide relief from forfeitures of pay to dependents of convicted Service members.” REP. OF
THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 38. Moreover, Service members who are not pu-
nitively discharged or confined for one year would still effectively be unable to receive any post-trial
relief because the only way they could access appellate review would be by an Article 69 review re-
quested by the Office of the Judge Advocate General. Id. at 38.
408. See REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 229.
409. Id.
410. Id.
411. Id.
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246 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
tential impacts are needed.412 All proposals would benefit from more
study, but given the major difficulties with the current system outlined
above, that objection alone should not be a basis for sustaining unitary
sentencing. Moreover, while non-unitary sentencing would be more diffi-
cult for a member panel,413 this Note proposes that judges become the
sole sentencing authority in noncapital cases.414 Adjudging sentences for
each offense for which a Service member is convicted is certainly not a
task beyond the expected competence of judges. After all, judges hand
down sentences for each count in civilian systems all the time.415
2. Military Judges Should Be the Sole Sentencing Authority in
Noncapital Cases
In addition to eliminating unitary sentencing, sentencing practices
should be amended so that only judges are the sentencing authority in
noncapital cases.416 There are significant advantages to this change.
First, judges have more legal training and experience than panel
members do. Judges are highly qualified attorneys and military officers
who are carefully chosen by their branch’s Judge Advocate General for
their excellence in both capacities, their legal knowledge and experience,
and their judicial temperament.417 Judges generally have experience in
sentencing and are trained to select sentences that reflect the particular
nature of a given charge.418 Panel members, on the other hand, need not
have any legal experience whatsoever419 and typically have no experience
with adjudging sentences—a deficit that can rarely be rectified through
jury instructions.420 As members have complained, sentencing itself is dif-
ficult and complex, particularly because a court-martial may try all of-
fenses allegedly committed by an accused at once, regardless of whether
the offenses are related to each other,421 and there are wide ranges of po-
412. Services’ Responses to Request for Information #149, supra note 402.
413. See id.
414. See infra Part IV.D.2.
415. See supra Fig.5.
416. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 228. Some members of the Re-
sponse Systems Panel, as well as the Service branches, reject this position, typically on the grounds
that more studies are needed before dispensing with member sentencing and that this change takes
away an accused’s option to be sentenced by a member panel. See id. at 227 n.1055, 228; see also
Services’ Responses to Request for Information #148, RESPONSE SYS. PANEL 60–64 (Apr. 11, 2014),
available at http://responsesystemspanel.whs.mil/Public/docs/Background_Materials/Requests_For_
Information/RFI_Response_Q148.pdf; Services’ Responses to Request for Information #84, supra note
225, at 2.
417. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 224; see U.C.M.J. art. 26(a)–
(b); MANUAL FOR COURTS-MARTIAL, supra note 40, at 502(c).
418. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 224.
419. See generally U.C.M.J. art. 25(a)–(c)(1); United States v. Gutierrez, 11 M.J. 122, 125 (C.M.A.
1981) (Everett, C.J., concurring).
420. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 225.
421. MANUAL FOR COURTS-MARTIAL, supra note 40, at 307(c)(4); REP. OF THE COMPARATIVE
SYS. SUBCOMM., supra note 1, at 225.
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tential punishments.422 The combination of little or no legal or sentencing
experience on the part of members and the often-confusing nature of
sentencing indicate that sentencing disparity may well result from con-
tinuing to allow member sentencing.423
Second, judge-only sentencing is less administratively burdensome
than member sentencing is. Members are detailed to serve on the mem-
ber panel,424 which means that panel members must be absent from their
ordinary duty stations for the duration of court proceedings. As a result,
“ordinary military training and operations” are disrupted.425 If military
judges were to become the sole sentencing authorities, this disruption
would be for a shorter time period.426
Moreover, both public and victim confidence in the military justice
system may be undermined by permitting member sentencing to contin-
ue.427 Convening authorities detail Service members whom they believe
to be the “best qualified for the duty” to serve on member panels.428 Re-
gardless of whether the convening authority details Service members in a
completely unbiased and fair manner, this power, combined with the ex-
tensive role that the convening authority plays in pretrial, trial, and post-
trial proceedings,429 may create “the perception of unfairness.”430 If an ac-
cused believes that the convening authority would unfairly interfere with
the trial, he may choose a trial by a military judge alone.431 But an alleged
victim has no such recourse if they believe that the convening authority is
not fair.432 Further, the public may question the convening authority’s
panel selections regardless of the outcome of the trial. If the sentence is
lenient, the public may believe that the convening authority detailed
members who would be lenient.433 If the sentence is exceptionally harsh,
the public may question the military justice system’s fairness.434 These
sentences may also affect the confidence that victims of sexual assault
have in the system, which may, in turn, affect a victim’s willingness to re-
port assaults.435
422. Potential sentences include reprimand, death, forfeiture of pay and allowances, fines, reduc-
tion in pay grade, restriction to specified limits, confinement, hard labor without confinement, punitive
separation, and bad conduct discharge. MANUAL FOR COURTS-MARTIAL, supra note 40, at 1003(b).
423. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 225; see also Immel, supra note
325, at 186–87; Kisor, supra note 310, at 56.
424. MANUAL FOR COURTS-MARTIAL, supra note 40, at 503(a).
425. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 226.
426. Id.
427. Id.
428. U.C.M.J. art. 25(d)(2).
429. See supra Part II.A.
430. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 226; see also Brigadier General
John S. Cooke, The Twenty Sixth Annual Kenneth J. Hodson Lecture: Manual for Courts-Martial 20X,
156 MIL. L. REV. 1, 25 (1998).
431. See MANUAL FOR COURTS-MARTIAL, supra note 40, at 805(b).
432. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 226.
433. Id.
434. Id.
435. Id. at 227; see also STAFF OF THE VICTIM SERVS. SUBCOMM., REPORT OF THE VICTIM
SERVICES SUBCOMMITTEE TO THE RESPONSE SYSTEM TO ADULT SEXUAL ASSAULT CRIMES PANEL
42–47 (May 2014), available at http://responsesystemspanel.whs.mil/Public/docs/Reports/03_VSS/VSS
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248 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
There are, however, those who believe that the military community
as a whole prefers sentencing by members. They argue that the military
community may view such sentencing as particularly fair because mem-
bers are in the best position to assess a specific command climate and
how the accused’s alleged offense impacts it.436 Yet this argument over-
looks the fact that judges are attuned to offenses’ command impact, even
if such judgments can best be made by one possessing combat experi-
ence, because judges can deploy and often have operational positions be-
fore becoming members of the judiciary.437 Others argue that member
sentencing should be retained because it helps future leaders gain more
knowledge of the court-martial process and therefore become better
leaders.438 But these interests are already furthered by permitting mem-
bers to participate in trials, “and eliminating sentencing by members does
not preclude or diminish such participation.”439
Perhaps the most important objection to this change is that elimi-
nating the option to choose sentencing by members could be viewed as
taking away an important right of the accused.440 Despite the fact that an
accused will often choose trial before members,441 and therefore sentenc-
ing by a member panel,442 it is entirely possible that the accused was only
choosing a trial by members, as opposed to expressing a sentencing pref-
erence.443 Because an accused’s forum selection determines both who will
conduct the trial and the sentencing, it is impossible to determine what
the accused was actually expressing a preference for by selecting member
sentencing.444 Importantly, judge-only sentencing in noncapital cases
would still permit trial before members. But it would also ensure that an
accused would receive a sentencing authority with the most experience,
expertise, and emotional detachment—a sentencing authority who is
most likely to consistently render fair decisions that reinforce percep-
tions of system legitimacy by the victim, the accused, and the general
public.
_Report_Final.pdf; Marlene Higgins, Note, The Air Force Academy Scandal: Will the “Agenda for
Change” Counteract the Academy’s Legal and Social Deterrents to Reporting Sexual Harassment and
Assault?, 26 WOMEN’S RTS. L. REP. 121 (2005).
436. See REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 227.
437. Id. at 227 n.1057. Also, enlisted members of the same unit are prohibited from serving on the
member panel. U.C.M.J. art. 25(c)(1).
438. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 228.
439. Id. (emphasis in original).
440. Id. at 227.
441. Id.
442. See supra Fig.5.
443. REP. OF THE COMPARATIVE SYS. SUBCOMM., supra note 1, at 227 n.1058.
444. Id. at 228 n.1062.
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V. CONCLUSION
The military justice system has been radically altered over the last
few years, as Congress, the President, and DoD personnel have sought to
limit the prevalence of and punish military sexual assaults. While sexual
assault within the military is undoubtedly a serious problem that must be
addressed, the military’s response to the epidemic of sexual assaults in its
ranks raises profound procedural due process concerns for those accused
of such crimes.
These due process problems stem from the military justice system’s
unique structure and the incentives in sexual assault cases. The military
has adopted an exceptionally victim-centric and aggressive approach to
eliminating sexual assaults that places tremendous internal and external
pressure on commanders to swiftly and severely punish any and all al-
leged sexual offenders. Commanders have responded by pushing sexual
assault cases with poor profiles to courts-martial. Unfortunately, an ac-
cused will face inequities throughout the pretrial, trial, and sentencing
phases of these court-martials. And defense counsel, unlike the prosecu-
tion, will be forced to operate in a mother-may-I system that consistently
places them at a significant disadvantage.
These problems are exacerbated by factors calling into question the
fairness and legitimacy of the system. Individuals who have themselves
committed sexual misconduct have been placed in charge of prosecuting
and preventing sexual assault. The military’s decision-making process,
even when nominally open, is markedly opaque. Further, members of the
chain of command have sent signals as to expected results in sexual as-
sault cases down the chain of command, while others, including JAGs,
have more directly interfered with cases. As a result, at least the poten-
tial for unlawful command influence permeates the proceedings.
Unfortunately, these problems “will not end in this current climate
of constant effort to eradicate sexual assault.”445 Consequently, the mili-
tary justice system must enhance the accused’s due process rights in or-
der to ensure system legitimacy, justice, and a fair trial.
This Note has proposed four ways that this could be done that
would also significantly reduce the risk of unlawful command influence,
enhance system legitimacy, and strengthen an accused’s due process
rights. Specifically, the military justice system should be altered so that:
(1) defense organizations are provided with adequate funding and per-
sonnel, including independent, deployable investigators; (2) disposition
authority is given to independent prosecutors; (3) military judges are giv-
en the authority to rule on pretrial matters from the earliest of pretrial
confinement or preferral of charges; and (4) sentencing practices are
changed so that unitary sentencing is eliminated and military judges are
445. Murphy, supra note 27, at 182 (“[T]he problem of [unlawful command influence], overem-
phasis on victim concerns to the detriment of the accused, and further amendments to the U.C.M.J.
will not end in this current climate of constant effort to eradicate sexual assault.”).
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250 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2016
the sole sentencing authority in noncapital cases. More changes may be
necessary, but these changes would interfere with current practices to the
minimum extent necessary to ensure an accused’s due process rights in
sexual assault cases. They would also substantially ensure that the mili-
tary justice system operates as it should—providing justice to both the
accused and the alleged victim.