Column: Military Should Not Dispense Justice in Sex Assault Cases

Thursday, March 20, 2014

Brig. Gen. Jeffrey Sinclair is a cad, a bully and a boor. Once a rising star in the Army and former deputy commander of U.S. forces in southern Afghanistan, Sinclair betrayed his wife, mistreated a mistress who was also his subordinate, and solicited nude photographs from other junior officers.

He is also Exhibit A for why military law governing sexual assault prosecutions should be changed to take such cases outside the regular chain of command.

Normally, and in many cases accurately, the critique of the current military justice system is that it fails to take victims’ complaints seriously enough. Commanding officers invested with the power to decide whether to pursue prosecutions may be inclined to sweep their buddies’ wrongdoing under the rug, to view victims as culpable, or to weigh the non-judicial desire to avoid losing a valued fighter.

But the spectacularly fizzled Sinclair prosecution illustrates the competing risk of non-lawyer commanding officers overreaching, fearful of appearing soft on sex crimes and the ensuing political fallout.

Sinclair, 51, pleaded guilty to having “maltreated” his mistress, disobeying orders not to contact her and misusing his government credit card. The Army agreed to drop charges that he forced her to perform oral sex and threatened to kill her and her family. He had previously pleaded guilty to committing adultery (a crime in the military), possessing pornography on his computer (a violation of orders in socially conservative Afghanistan), pressuring other female officers to send him nude pictures, and impeding the investigation by deleting some explicit photographs from his computer.

Nice guy, huh?

But bad things can happen to bad people, too. The prosecution of Sinclair, who appears to be the highest-ranking military officer ever accused of sexual assault, occurred amid the hothouse atmosphere of besieged military and civilian authorities pledging to crack down on such behavior. Indeed, even as Sinclair was facing court-martial proceedings at Fort Bragg, N.C., the Senate was debating — and, ultimately, blocking — New York Democrat Kirsten Gillibrand’s effort to strip commanders of the power to decide whether to pursue such cases.

And here is where the fizzled part of the Sinclair prosecution comes into play. Sinclair’s accuser, The Washington Post reported, stands by her assertion that he forced her to perform oral sex on two occasions and threatened to kill her and her family if she revealed their three-year affair.

Perhaps that’s what happened, but the accuser, a 34-year-old captain, also suffers from serious credibility issues. At a pre-trial hearing, she testified that she had just recently found an iPhone containing evidence of the affair. But forensic examination showed that the story was untrue; the phone had been turned on weeks earlier.

That discrepancy was among the concerns that led the then-chief prosecutor, Lt. Col. William Helixon, to conclude that the most serious charges against Sinclair should be dismissed because, according to a later prosecution memo, they would be “very difficult to prove at trial.” Helixon became distraught and abruptly left the case, telling defense lawyers, according to a defense memo, “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.” His departure prompted an inquiry into whether there had been “undue command influence” in pursuing the Sinclair prosecution.

Army lawyers released emails from the accuser’s “special defense counsel” arguing that accepting a plea deal would “have an adverse effect on … the Army’s fight against sexual assault.” Letting Sinclair characterize the relationship as “consensual,” the lawyer contended, “would only strengthen the arguments of those individuals that believe the prosecution of sexual assault should be taken away from the Army.” Criminal prosecution is about both punishment and deterrence.

But prosecutors fall short of their responsibility to do justice if they hesitate to drop a weak case, particularly for fear of the political fallout, as well as if they fail to pursue a worthy one.

Which is precisely why the better course — the more just course, for accuser and accused alike — would be, as Gillibrand urges, to take these decisions away from those who have competing worries besides dispensing justice.

Missouri Democrat Claire McCaskill, who has been the leading advocate against the Gillibrand approach, argues that it would result in fewer cases, as prosecutors worry more about win-loss records than protecting victims.

Perhaps, but this sordid episode demonstrates the countervailing risks of the status quo. Justice, and the commanders burdened with dispensing it, would be better served with these decisions left to professionals.

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