A Better Way Forward for Prosecuting Military Sexual Assaults
"The current system for prosecuting members of the U.S. military for sex crimes is flawed, writes Kevin Carroll, a U.S. Army reservist who served as a military intelligence officer in Afghanistan and Iraq. Purely military offenses should remain in military court, he says, but Congress should allow other crimes to be tried in federal and state court systems."
The relevant passage:
"System Has Design Flaws
The design of the military justice system is inherently problematic. Commanders, who are non-lawyers, decide whether to prosecute, an authority we do not give governors or mayors (and try to keep distanced from presidents). Commanders evaluate prosecutors for promotion, in a way in which governors and mayors do not evaluate attorneys general or district attorneys.
Commanders also pick the service members who serve as jurors at the courts-martial they convene, which is unthinkable in a civilian context. The temptation to exercise “unlawful command influence” over the disposition of a case is often irresistible to the type-A personalities who wear stars.
While commendable efforts are made to insulate military judges and defense counsel from commanders’ pressure, and these good professionals take their ethical responsibilities seriously, the uniformed bar is insular, and the path to advancement narrow. There is no military correlate to the independence of a life-tenured Article III judge (or a New York state judge with a 14-year term, for example), or a federal defender who only reports to the chief judge of a circuit court of appeals.
Few active duty military lawyers have opportunities to clerk for civilian judges, or move between private practice, academia, or posts elsewhere in government, experiences which ideally broaden their civilian counterparts’ perspectives. Despite excellent JAG lawyers’ talents, military practice tends over time to lead toward more parochial views.
Judge advocates serve crucial roles beyond adjudicating criminal cases—in administrative and operational law, for example. And there is an irreducible number of military cases that JAGs alone can handle. Some proceedings unavoidably take place in war zones. Others are for crimes that have no counterpart in Title 18 of the U.S. Code, and appear only in the punitive articles of the Uniform Code of Military Justice (malingering, desertion, missing movement, disrespect, and misbehavior before the enemy). Purely military offenses still ought to be tried by, and in front of, service members.
But for crimes that can be tried at least as well by the federal and state court systems, including most sex crimes, Congress should tell the military to let civilian attorneys take the lead."
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