Thursday, April 24, 2014

Guest Column: Move military assault cases to civilian courts

Matthew T. Mangino, Times Guest Columnist
The Delaware County Daily Times
April 21, 2014
The U.S. Army recently endured an embarrassing and troubling public spectacle. The Army dropped sexual assault charges against Brig. Gen. Jeffrey Sinclair in exchange for his plea to less serious charges of misconduct.
He was spared prison and sentenced to a reprimand and a $20,000 fine. His plea ended the trial of the highest-ranking officer ever to face sexual assault charges.
The trial may have ended but the controversy will continue. Sinclair pleaded guilty to having improper relationships with three subordinate officers, including the female captain who accused him of assault. He also pleaded guilty to adultery, which is a crime in the military.
Defense attorney Richard Scheff told The Associated Press that Sinclair is admitting to his mistakes, but added that the general is pleading guilty to behavior that likely wouldn’t be criminal in the civilian world.
How can a military officer or enlisted person have “consensual” sex with a subordinate soldier? In Pennsylvania, Institutional Sexual Assault, 18 P.S. 3124.2 provides an employee or agent of the Department of Corrections or a county correctional authority, youth development center, state or county juvenile detention facility or school who engages in sexual intercourse with an inmate, resident or student is guilty of a felony of the third degree.
The inmate, resident or student cannot consent to sex with a guard, caretaker or teacher. Why? Just as in the military there is concern that consent is influenced by the real or perceived threat of consequences for failure to indulge in the sexual conduct.
In prison, the consequences might be a contrived misconduct and time in the “hole;” in a youth development center it might be loss of a home visit; in school, unwarranted discipline; in the military the loss of a promotion or worse.
Just this month a Cumberland Valley High School teacher, outside of Carlisle, was charged with institutional sexual assault for her alleged relationship with an 18-year-old student.
Although the victim is of the age to consent to sex, the 31-year-old teacher is charged with having sexual encounters with the student in her classroom.
The military’s unique hierarchy and strict adherence to discipline sow the seeds for abuse. Lawrence Korb, a defense official in the Reagan administration, and Anu Bhagwati, a former Marine Corps captain, wrote in a 2012 Baltimore Sun op-ed that military sexual assault “[s]urvivors are often punished after reporting, including being forced to work with their perpetrators; charged for ‘fraternization,’ ‘adultery’ or ‘conduct unbecoming’; demoted or denied promotions and awards; or discharged from service with a false mental health diagnosis.”
Criminal prosecutions of sexual assault cases are rare in the military and civil recourse is almost non-existent.
Korb and Bhagwati lamented the expansion of the U.S. Supreme Court’s decision in Feres v. United States, 340 US 135 (1950). In Feres, the court ruled that the United States is not liable under the Federal Tort Claims Act for injuries to members of the military that are “incident to service.”
The decision makes sense in terms of limiting the military’s liability for injuries while training or in combat. The management of the military would grind to a halt if soldiers could sue their commanding officers.
Over time the term “incident to service” became all-encompassing even to include sexual assault or rape. Korb and Bhagwati suggested, “Carving out an exception to the Feres doctrine in cases of sexual assault must happen…Rape should not be considered an inevitable consequence of serving one’s country.”
Sinclair’s conduct, and the manner in which this prosecution unraveled, reveal what appear to be fundamental flaws in the way sexual assaults are handled under the Uniform Code of Military Justice.
With unreported sexual assault on the rise in the military, and with men entrenched in leadership positions, lawmakers should consider removing sexual assault investigations and prosecutions out of the military system and into civilian courts.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010” is due out this summer. Reach him at and follow him on Twitter @MatthewTMangino.
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