Wednesday, December 6, 2017

Civilian offense, civilian trial

A U.S. Navy commander is on trial in California state court on charges including attempted rape, as reported here in the San Diego Union-Tribune. The victim is a Navy helicopter pilot instructor and the offenses are alleged to have been committed at her off base apartment. The article observes: "The case is being tried in state court rather than military court because San Diego police brought the case to the District Attorney’s Office, an office spokeswoman said." This may incorrectly imply that the case could only have been brought in one court, whereas in fact the defendant could have been (and in theory still could be) prosecuted in both a court-martial and state court, under the dual sovereignty doctrine. Military prosecution would be constitutional under Solorio. Human rights principles, however, limit military criminal jurisdiction to military offenses. The 2006 Draft UN Principles Governing the Administration of Justice Through Military Tribunals provide: "The jurisdiction of military courts should be limited to offences of a strictly military nature committed by military personnel."

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