Does the military justice system handle criminal sex allegations impartially, regardless of the accused’s rank? A recent sexual assault investigation against a four-star general has raised this very question among commentators.
The issue is a procedural one: commanders often have discretion in referring certain matters for further investigation or even prosecution. For an alleged victim of sexual assault, there is a choice whether to file a restricted or unrestricted report. The former report does not identify the accused by name or culminate in a criminal investigation. For an unrestricted report, a victim reports the matter to his or her unit commander, and that may trigger an investigation.
In the example of the four-star general, one commentator’s perception is that commanders are essentially being asked to prosecute their colleague and/or peer. An additional wrinkle in this case may also be presented by the general’s retired status. The former factor may explain why the military justice system infrequently puts generals on trial.
Some members of Congress have recommended that independent military prosecutors be used instead of commanders. Other commentators believe that stronger penalties should be applied criminal cases, instead of some instances where a conviction only results in a rank demotion.
Such changes would most likely require Congress to rewrite major provisions of the Uniform Code of Military Justice. Notably, the Defense Department has done just that: After a recent two-year review of how the military system tries and punishes troops for misconduct, it asked Congress to amend dozens of UCMJ articles. Such revisions might result in criminal procedures that are more similar to the civilian criminal justice system. All of these questions underscore the importance of for victims and accused alike to consult with an independent attorney who focuses on military law.
Source: McClatchy Washington Bureau, “What happens when 4-star Air Force general is accused of sexual assault?” Curtis Tate, Sept. 2, 2016