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| LtCol Jeffrey Krusinski USAF |
Air Force Times has
this interesting story about an officer (who led a sexual assault prevent and response office) who was tried and acquitted in civilian court on charges of groping a civilian woman in a parking lot not on military property. Wisely (and appropriately) the service is not pursuing court-martial charges, but it is nonetheless awarding the officer a letter of reprimand that will certainly end his career. Obviously, the fact that state prosecutors were unable to persuade a civilian jury by proof beyond a reasonable doubt does not mean, for example, that there was proof of the offenses by a preponderance of the evidence, much less by the lower standard of substantial evidence. Still, the outcome leaves one, on a certain gut level, at least a little uncomfortable: acquittal by a jury in a court of competent jurisdiction seems like it ought to be the end of the matter. Comments invited on this. What would happen in other military systems?
Justice (ret) Gilles Letourneau sent the following comment:
ReplyDeleteProfessor Fidell asks what would happen in other military systems. Under Canadian law the acquittal of an accused by a civilian court on a criminal charge does not preempt disciplinary proceedings before a disciplinary board. For instance a doctor charged with sexual assault may get the benefit of the doubt before a civilian court and be acquitted. Yet his or her behaviour in the circumstances may amount to a conduct prejudicial to the profession.
Under the National Defence Act (Act), an act or conduct to the prejudice of good order and discipline is an offence for which the accused is liable to dismissal with disgrace from Her Majesty's service or to a lesser punishment: see s.129. The s.129 offence is a service offence just like the sexual assault would be if it were prosecuted before a military tribunal rather than before a civilian court.
S.66 of the Act gives an accused the right to raise a Plea in Bar of Trial. Stripped to the bone for our purpose, s.66 stipulates that a person may not be tried or tried again in respect of an offence or any other substantially similar offence arising out of the facts that gave rise to the offence if the person has been found not guilty by a civil court on a charge of having committed that offence.
There is no doubt that the facts giving rise to the sexual assault charge before a civilian tribunal and to the conduct to the prejudice of good order and discipline charge before a military tribunal are the same. However the two offences are different. They have a different acts reus and mens rea. The objectives sought by the prosecution of these two offences are also different: public interest and deterrence for the former, discipline and good order for the latter. In addition I do not think that one could say that they are substantially similar offences.
In the end, while a prosecution remains available under s.129 of the Act, there is also the option of resorting to an administrative sanction leading to the dismissal from service. One thing is sure though: inaction from the military in such circumstances does not foster good order and discipline.