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Be careful what you wish for….

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For you may surely get it.

This morning, on my way into work, I heard a story on NPR about the Congressional effort by Kirsten Gillibrand to pass legislation to take the power of prosecuting sexual assault cases in the military out of the hands of Court Martial Convening authorities and place them in the hands of military prosecutors. This is a huge mistake. It is short-sighted and ignores the reality of the current situation in the military.

It does, however, satisfy the stringent desire of those who want to hang a boatload of scalps from their mantelpieces. It’s wrong-headed and, if passed, will need to be referred to by its proper name. ” The railroading of Sailors act.”

If your aim is justice and not just convictions – then you should oppose this effort with all of your strength. I’ve written on this issue several times before, pointing out how counterproductive this effort is – and how good, innocent people will pay the price for this rush to judgment.

So let’s review, shall we?

Just about all of this is bad-really bad. By undermining the Convening Authoritiy’s ability to exercise his responsibility under the UCMJ, you are going to make sure a lot of innocent folks get railroaded.

Most military sexual assault cases are not clear cut. Its not some guy just grabbing a girl, throwing her down and raping her in the closet. Rather they are primarily “buyer’s remorse”  types of cases where both parties have probably made some bad decisions, under the influence of love, lust, and / or alcohol-and the issue of consent is most often times not clear cut.

What these changes do is make sure that every case, EVERY case of alleged sexual harassment, will be tried at the highest possible level. Even when the facts of the case don’t warrant it. Furthermore, it also raises the possibility that someone who does something clearly wrong will get away with it scot free. Court Martials are Courts. Rules of evidence and cross examination apply-and trust me, defense attorneys will do their best to drag the victim through the mud and make her look like a bigger tramp than Delilah. That is their job. These cases are difficult, and it comes as a surprise to no one who understands the nature of the crime that sometimes getting to guilty beyond a reasonable doubt simply cannot be done. To remove this authority from the chain of command lets commanders off the hook and decreases options for securing justice for victims. I am not a lawyer-but it seems a commander has more authority under a murder charge than on a sexual assault one. In what universe does that make sense?

And I’ll be blunt. Not every one of these, “he said, she said,” cases need to go to court-martial. In many cases- where it is not a full-blown rape or even felony sexual assault, the commander may, in fact, need to punish both parties. These laws make one sex out to be a preferred class. Guess which one? I’ll give you a hint; it’s not the one with a penis.



This is a bad business. If you claim to say you want to hold commanders accountable, you HAVE to provide them with the tools they need to do their jobs properly. These provisions do not do that. And more importantly, I defy you to find a senior commander today who does not understand what a sensitive issue this is – and how the eyes of the world will descend upon him or her, the moment after they hit send on a Unit Sitrep informing the fleet commander that there is a sexual assault complaint.

The solution here is not more Congressional legislation. The tools already exist to go after the offenders and to deal with bad behavior. If a commander does not deal with a case properly, then find a way to deal with that too. The tools are already in the system.

Furthermore, Gillibrand is not exactly an innocent here – she, having already railroaded a perfectly competent Senator out of the Senate, for what was later exposed to be as literally nothing – but she turns a blind eye to a bonafide traitor ( Josh Hawley) in her midst. Simply put – she has no credibility on this issue anymore.

It is important to remember that there is no standing court in a military proceeding -it has to be created. And because the commander is still trusted with the responsibility to maintain good order and discipline-he or she has to be quite careful not to create a stampede to make an example out of someone. That is a big difference between the military and civilian systems. The civilian court system is more removed from the proceedings after they occur. Not so in the military. We claim that we want to enforce a culture of accountability. And then we turn around and deny commanding officers the tools they need to exercise their authority and lead their subordinates in fairness. That’s not smart.

Especially when Senators like Gillibrand have played a big role in setting up the foundation that creates the preconditions for these things occurring. Welcome to the real world, Senator, where policies that place men and women in close proximity and encourage Sailors to date Sailors lead to unintended consequences.

Please don’t take away the commander’s ability to exercise his or her authority fully. That in the long run is a big mistake and is setting the stage for some innocent person to be wrongly convicted and railroaded for the rest of his life. Court Martials do make mistakes.

I suggest to Senator Gillibrand that after you apologize to Al Franken for the horrendous mistake you made driving him out of the Senate, you go to work to repeal this section of Article 134 instead? That would do some real good in the long run.


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