Should the Generals fight to keep UCMJ authority over Sexual Assualt and other Major Crimes?
As we all know the military Leadership is fighting hard to retain control over cases involving Sexual Assault, harrasment and major crimes. I am beginning to wonder if maybe we are fighting to hard for something that is inconsequential in the big picture. Why shouldnt we hand that off to the civilian court systems?
As I got to thinking about this the other night, I came to the conclusion that as long as Commander's retain UCMJ authority over our regulations (Article 15 mainly), we can still use it as a tool for good order and discipline. Seldom is there a case where we take a Soldier to General Court Martial, who is found guilty and then want to retain, rehabilitate. By turning it over to the civilian courts, we increase our transparency in these cases.
It will also come with the added benefit of saving the military some money. We can still do the investigation, but then turn it over to the civilians. This will save time (we dont have to take Soldiers away from their duties) and money (we dont have to pay for expenses, it becomes a federal case). We already have a federal court system in place, we can use that. With the black eye we have received recently due to percieved mis-handling of cases, this is the perfect opportunity to relieve ourselves of that perception.
SHARP
Discipline
UCMJ
Authority
I like your thoughts on this, but are you talking about only Sexual Assault? I would hesitate to give up all UCMJ authority to civil courts specifically because the UCMJ is the Uniform Code of Military Justice and not civil law. The UCMJ goes though revision periodically, but we still retain all the punitive articles (77-134) because there are considerations for all of these that are purely military in nature and all the members of a civil court do not necessarily understand these considerations.
Rather than give up all CM authority under the UCMJ, should we instead relinquish control of "civil" offenses like Larceny and Assault and maintain jurisdiction of military offenses such as AWOL and Dereliction? Would you trust a jury of civilians to return a verdict on a GCM that appropriately considers a military record when deciding between a BCD or Dishonorable Discharge, or whether to give hard labor without confinement in lieu of a longer sentence? Maybe civil authority over GCMs while Summary and Special CMs are maintained within the DoD?
I personally don't like that idea, but who's to say it would not be more effective. Maybe the public would hold us to a better standard being somewhat disinterested in the considerations we hold high and might use to look past a proper sentence.
You hit it dead on the head MSGT Green. We retain all UCMJ authority over the punitive articles so that we can maintain good order and discipline. The vast majority of that can be handled under the provision of an Article 15, but for those that cannot we will still have Courts Martial.
I am strictly talking about major crimes. Sexual Assault, rape, murder, attempted murder, child abuse/neglect. Areas that have a significant impact in the civlian sector just like the military.
SGM,
I like where you're going with your idea. When this topic first came out in the media/government, I was kind of torn on the idea of it being turned over to civilians, maybe only because I felt like it should be handled by our own.
However, as I have become certified as a SHARP Victim Advocate and I am now privy to more than I was before through training and my "duties" (still waiting on credentials), I believe it should be turned over to the civilian courts. My biggest reason is civilian courts hand out heavier (more deserving) sentences than the military in sexual assault cases. As for the care that the military provides to the survivors, I believe we are way ahead of the civilian sector. I believe Victim Advocates and SARCs should be maintained to facilitate the needed care for the survivors but as for the trial, I am all for civilian courts taking over. As for the other major crimes you address in one of your responses, I also agree that those should be handled by civilian courts.
SGM,
I agree with what you and MSgt Green have said on this topic. I would definitely support it as a leader.
I have seen a young service member come into an NJP confident, had done their homework, and brought nothing but facts and cited the regulations to support their case. In the end, the interpretation of the rules came down to "Rank." He or She who had the higher rank had the "correct" interpretation of the regulations. When it was all over I approached higher authority and asked why they decided in the way they did. Their answers were "Its about saving face" and "We needed to set an example that ???? will not be tolerated" or other trite answers.
I do believe that UCMJ authority is a great tool, a powerful tool, but also a tool that is susceptible to abuse; like anything in this world. I think big ticket items should be taken out of the commanders hands as they also have a command to run. Leave the lawyer'ing up to the lawyers. When I see a an OIC playing judge, jury, and executioner (Judge and Prosecutor) most often than not the accuses has already found guilty without ever hearing the evidence.
I agree with you on the UCMJ. When talking about ART 15s I find it funny that the same person who often is either the recommender or approver for the UCMJ to go forward, is the same person determining guilt or innocence (yes I have a few ART 15s under my belt as the one being punished). It takes away the appearance of impartialality, and quite frankly reeks of guilty until proven innocent.
No system is ever perfect, but it is what we have, and we have to support it. One of the things that I do in my BN, is we try to keep the BN CDR impartial. I review all the UCMJ packets and make a recommendation on them. We (the CDR and I) have some standing guidelines that I use as to whether to handle it at his level, Company level or proceed to Court Martial. He only reviews the really tough ones prior to the reading. It helps, but again is not perfect.
I have also gone back and forth on what I think the best solution would be. Putting the case in the hands of the civilian court system does offer an unbiased approach, however, with the backlog of civilian cases in the court system, it could take years before it goes to trial. Although the military court system is not the most efficient system, court martial proceedings are much quicker.
Being a SHARP Program Manager, the biggest issue I have seen with the adjudication of offenders is that the investigative process takes a long, long time. Although circumstances of the case are the main driver of how long the investigation lasts, it has been my experience that SHARP incidents that happen off post take twice as long to investigate because you have to rely on the civilian authorities and prosecutors. Even if they were able to investigate quickly, most counties are so backed up with court cases that it will not go to trial for 6+ months. All the while that offender is sitting in our ranks. I think the best solution would be to have some sort of specialized investigative team that would be able to work with both civilian and military authorities. This could help speed up investigations and also improve on the investigative process. Just my two cents.
SGM,
I like this idea but wonder if we would run in to jurisdictional issues, i.e. who gets the case if the crime is committed on base (federal jurisdiction) versus off base (local jurisdiciton). Could we have an instance where multiple crimes are committed across both jurisdictions by the same individual (has often happened with military)? The military maintaining jurisdiciton under the UCMJ avoided all of these issues unless they specifically waived their right to try the individual. Should the DoD decide to go in this direction, it would take some careful planning and clear guidelines. Obviously, as has been mentioned, the military would retain jurisdiction on the "purely military" issues.
But I do like the idea of civilian resources handling the litigation and the military only having to process an administrative discharge on a guilty verdict.
Great points. I have witnessed cases just like you explained, and they are very complicated and take forever. One of the biggest problems is that if an incident occurs off post, the military really cannot do anything with that offender until the civilian authorities are finished with the case (double jeopardy). Now granted the offender is innocent until proven guilty, but commander's do not want a suspected sex offender sitting in their ranks for a year waiting to go to trial.
http://www.armytimes.com/article/20140201/NEWS06/302010003/War-zone-crime-ring-led-prison-time-murder-suicide
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