Wednesday, May 30, 2018

Choosing between the suppression of sexual assault and unlawful command influence

Jared Keller
Jared Keller, a senior editor at Task & Purpose, has written this provocative essay for Pacific Standard, suggesting that the doctrine of unlawful command influence stands in the way of effective steps to suppress sexual assault in the U.S. armed forces. He refers to UCI as "another cancer brewing with the confines of" the military, and points to the "sick irony" that a doctrine intended to help military personnel is doing the opposite. After mentioning several recent cases, he concludes:
When it comes to sexual assault specifically, this expanding interpretation of UCI has major consequences: that those commanders who often dismiss (or are subject to) allegations of sexual assault and abuse can simply shrug off the responsibility of charging their colleagues the minute any high-ranking government official talks at all about any related case. And in a world drowning in media, that means any offender has a trove of evidence of apparent UCI.
Comments invited; real names, please.

1 comment:

  1. [Disclaimer: This comment is made in my personal capacity; it shouldn't be imputed to any other person or entity.] The UCI article suffers from so many analytical and factual problems it would require an essay as long as the article to catalog them all. Let me highlight a few errors that, "like the thirteenth stroke of a crazy clock," throw "doubt on all" that accompanies them. Thomas Hardy, Far From the Madding Crowd 209 (First Vintage Classics ed. 2015) (h/t ERF).

    First, the article states, "Among the sweeping changes the UCMJ instituted in the military justice system: Article 37, which bars 'unlawful command influence' (UCI)." Far from a sweeping change, Article 37 of the UCMJ, Pub. L. No. 81-506, 64 Stat. 107, 120 (1950), restated almost verbatim Article of War 88 as amended by the Elston Act. See Military Selective Service Act of 1948, Pub. L. No. 80-759, § 233, 62 Stat. 604, 639.

    Next, much of the article concerns the case of A1C Wright, but its account of Wright is often wrong. For example, the article says that after Lt Gen Franklin decided not to refer charges, "the Pentagon opted to step in, deciding to transfer the case to another judge." The case wasn't transferred to another judge; rather, Wright himself was transferred and his new commander became the new CA. U.S. v. Wright, 75 M.J. 501, 503 (A.F. Ct. Crim. App. 2015) (en banc). Because Lt Gen Franklin didn't refer charges, there was no military judge before the transfer. Next, the article discusses the "replacement" judge's ruling that resulted "in Wright's case getting tossed." But Wright was tried by a GCM in October 2015. After the judge abated proceedings twice over discovery issues, the prosecution filed an Article 62 appeal, which AFCCA granted. 75 M.J. at 507-08, 512. Wright was then tried and acquitted. While the judge found UCI, he didn't dismiss the charges because he held the second CA wasn't unlawfully influenced.

    The article states that in May 2017, "an Air Force Court of Appeals also reversed a sexual assault conviction of airman Rodney Boyce after determining that public statements by Senators Gillibrand and Claire McCaskill (D-Missouri) regarding the Marines United scandal earlier that year created" an appearance of UCI. That sentence includes layers of inaccuracy. In Boyce, after AFCCA affirmed the findings and, with a minor adjustment, the sentence, CAAF reversed. U.S. v. Boyce, 76 M.J. 242 (C.A.A.F. 2017). The case has precisely nothing to do with the Marines United scandal. Nor was the apparent UCI ruling based on statements by Senators Gillibrand and McCaskill. Rather, CAAF held the defense showed some evidence of UCI "by the Secretary of the Air Force and/or the Chief of Staff of the Air Force" and the prosecution didn't prove beyond a reasonable doubt that "the conduct of the Secretary of the Air Force and/or the Chief of Staff of the Air Force did not place an intolerable strain upon the public's perception of the military justice system." 76 M.J. at 252.

    The article attributes two portions of CAAF's majority opinion in Boyce, written by Judge Ohlson, to "military judge Christopher Levey." See 76 M.J. at 250, 252.

    Finally, the article maintains, "The appearance of UCI was enough to get off scot-free." Putting aside CAAF's authorization of a rehearing, 76 M.J. at 253, Boyce's sentence included 4 years of confinement. The sentence was adjudged on March 15, 2014. So Boyce was already more than 3 years into his sentence when CAAF reversed. Whatever one thinks of the outcome, I wouldn't call that getting off "scot-free."


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