There is no military sexual assault epidemic. The military is just like the civilian world when it comes to sexual assault. Colleges have similar rates of reports as the military for college age persons (in the military, junior enlisted folks). I’ve seen my fair share of alcohol facilitated sexual assault reports to local Florida authorities.
The primary difference between the military and civilian authorities is the willingness by the military to pursue cases and spend resources to prosecute and place a military member in jeopardy of a conviction when there is little evidence.
I call it cowardness by military leaders who are so set on preserving there own career that they are willing to sacrifice their subordinates. Military leaders serve as the convening authority for courts-martial and have all prosecutorial discretion – they decide whether a military member will face court-martial and what charges will be pursued. And one thing has become abundantly clear since Congress began scolding military leadership about this perceived sexual assault epidemic – military leaders will pursue charges that aren’t supported by the evidence because of the negative impact not pursuing charges may have on their career.
The actual political pressure on convening authorities in sexual assault cases was revealed today in this Washington Time article regarding the case of Navy Seal Chief Barry, who was convicted of sexual assault in San Diego in October 2014. The admiral who convened the case reviewed the case and determined that he did not believe the evidence supported the conviction of sexual assault. He was going to use his power (which has since been removed by Congress from the UCMJ) to set aside the conviction. Worried about the political backlash, the Judge Advocate General of the Navy and her deputy, also an admiral, personally contacted the convening authority to discuss the political backlash to the Navy and to the convening authority personally if he set aside the conviction. Importantly the JAG and her deputy are not the convening authority’s legal advisor, but report directly to the Chief of Naval Operations, the most senior officer in the Navy! In plain terms, the convening authority had the CNO’s lawyers calling on him to not do what he felt was right.
Retired admiral Patrick Lorge, said that even before he spoke with the two admirals he realized that if he overturned the conviction there would be trouble on Capitol Hill where a number of lawmakers have regularly criticized the response of the Armed Forces to sexual assault allegations within its ranks.
“I perceived that if I were to disapprove the findings in the case, it would adversely affect the Navy,” he said. “Everyone from the President down the chain and Congress would fail to look at its merits, and only view it through the prism of opinion. Even though I was convinced then, and am convinced now, that I should have disapproved the findings, my consideration of the Navy’s interests in avoiding the perception that military leaders were sweeping sexual assaults under the rug outweighed that conviction at the time.”
If anyone accused of sexual assault believes the process will clear their name based solely on the evidence, they should be prepared to be convicted. The presumption of innocence in a criminal case is a bedrock of the Constitution. But it is not part of the military court-martial process when it comes to sexual assault. The case of Chief Barry proves that sexual assault courts-martial are manipulated by senior Navy leadership scared of the political impact of making important decisions that should be based solely on evidence.
Attorney Patrick Korody is a former Navy Judge Advocate who has tried sexual assault courts-martial at military installations around the world. He specialized in sexual assault cases while on active duty. His office is located in Jacksonville, FL and he can be reached at (904) 383-7261.