Thursday, April 25, 2013

Hard Cases Make Bad Law; And, Hard-assed Senators Cannot Change Settled Law.

WASHINGTON (AP) — Sen. Claire McCaskill is holding up the nomination of Air Force Lt. Gen. Susan Helms, tapped to serve as vice commander of the U.S. Space Command, until the Missouri Democrat gets more information about Helms' decision to overturn a jury conviction in a sexual assault case.
"As the senator works to change the military justice system to better protect survivors of sexual assault and hold perpetrators accountable, she wants to ensure that cases in which commanders overturned jury verdicts against the advice of legal counsel are given the appropriate scrutiny," Drew Pusateri, a spokesman for the senator, said Thursday 25 April.
In February 2012, Helms rejected the recommendation of legal counsel and overturned the conviction of an Air Force captain who had been found guilty of aggravated sexual assault of a female lieutenant.
McCaskill's hold prevents the Senate from approving Helms' nomination.
The Helms' situation echoes another Air Force case that has outraged members of Congress.
Lt. Gen. Craig Franklin, commander of the 3rd Air Force at Ramstein Air Base in Germany, overturned the conviction against Lt. Col. James Wilkerson, a former inspector general at Aviano Air Base in Italy. Wilkerson had been found guilty last Nov. 2 of charges of abusive sexual contact, aggravated sexual assault and three instances of conduct unbecoming of an officer and a gentleman. The incident had involved a civilian employee.
Wilkerson was sentenced to a year in prison and dismissal from the service, but after a review of the case Franklin overturned the conviction.
Lawmakers demanded a fresh look at the military justice system. Earlier this month, Defense Secretary Chuck Hagel recommended that military commanders be largely stripped of their ability to reverse criminal convictions of service members.
McCaskill, a member of the Senate Armed Services Committee, has introduced legislation that would limit the authority of military commanders to overturn convictions.

One bill in Congress would remove control of military sexual assault cases from the pertinent chain of command. U.S. Rep. Rosa L. DeLauro, a New Haven Democrat, is one of 83 co-sponsors. DeLauro said it would establish “reforms I fear the military cannot make on its own.” It should have been done “years ago,” she said.

The bill would establish an office of civilian and military legal experts to investigate cases, create a reporting method, provide safety to victims, and keep a database from which convictions would be sent to the National Sex Offender Registry.

Another proposal would take the decision away from commanders on whether to prosecute any crimes punishable by sentences of one year or more, not just sexual assault cases. A military prosecutor would make these decisions under the bill spearheaded by U.S. Sen. Kirsten Gillibrand, (D-NY) and co-sponsored by a dozen other members of the Senate and House, including Democrat U.S. Sen. Richard Blumenthal. Supporters expressed hope that it would encourage reporting of sexual assaults because without the chain of command involved in prosecutorial decisions, fear of retribution may be diminished.

The bipartisan bill would also remove the authority from commanders of overturning or reducing convictions. In February, an Air Force commander overturned the conviction, prison sentence and military dismissal of an officer found guilty of sexually assaulting a civilian contractor.

In a Federal Court case in New Haven, plaintiffs are seeking data from the military and the U. S. Department of Veterans Affairs relating to sexual assaults. The hope is that information obtained can help determine what new laws and policies are needed, said Michael Wishnie, a law professor who supervises the Yale Law School Veterans Clinic. The clinic is representing plaintiffs who include the Service Women’s Action Network, the American Civil Liberties Union and the Connecticut ACLU.

The Military Rape Crisis Center, an advocacy organization, is urging state legislatures to ensure that their National Guard conduct codes allow for adequate prosecution of sexual assault and proper treatment of victims, said Jennifer Norris, a center victim advocate. So far, bills have been proposed in two states, Maine and Louisiana. Maine’s bill, a study, would assess such issues as mandatory separation from the Guard of convicted sex offenders, mandatory insurance coverage for abortion in cases of rape, and required sexual assault prevention courses for officers. In Louisiana, a definition of sexual harassment and assault would be put into its Military Justice Code for the first time.

Nancy Parrish, president of Protect Our Defenders, cited “a pervasive boys’ club mentality” in the military. She said studies show that “in units where sexual harassment is condoned, women are 40 percent more likely to be sexually assaulted or raped.”
 A report in April based on a 2011 Pentagon health survey found that more than one out of five female respondents said they experienced unwanted sexual contact by another service member; and nearly a third of military women with gender-related stress were sexually assaulted while in the military.

 There are roughly 4,500 cadets at West Point. Women have been accepted to the prestigious military academy since 1976 and make up about 15 percent of the cadet corps, while at the Coast Guard Academy in New London, CT women make up over 30 percent of the corps of cadets.

At the U.S. Coast Guard Academy in New London, many cadets are afraid they will be retaliated against if they report sexual offenses, said Panayiota Bertzikis, executive director of the Military Rape Crisis Center. The center runs confidential support groups for cadets who have been sexually assaulted. Bertzikis said about 40 women and 10 men attend the groups. The women were assaulted by cadets while most of the men experienced sexual trauma before enrolling at the academy.

Coast Guard Rear Admiral Frederick J. Kenney, testifying recently before a Senate subcommittee, said that the academy has “quite a robust training plan in place for the cadets” on the issue, including a Sexual Assault Response Coordinator and a student group trained to confidentially “accompany a victim to a Victim Advocate.” Academy Superintendent, Rear Admiral Sandra L. Stosz, declined an interview.

A Pentagon report released in early May found that the number of sexual assaults reported at military academies soared in recent years, from 25 in the 2008-09 academic year to 65 in 2010-11 and 80 in 2011-12. Reports of unwanted sexual advances also have risen throughout the military, from about 19,000 in 2011 to an estimated 26,000 in 2012, an increase of 37 percent, Reuters reports.
 Advocates note that men are also victims of sexual assaults.

A May Pentagon report shows more men assaulted than women, but a much smaller percentage based on their populations. Some 12,100 women were assaulted out of a total female military population of 200,000, while 13,900 males were assaulted out of 1.2 million military men.

President Barack Obama called a meeting with Defense Secretary Chuck Hagel and other military leaders to discuss sexual assaults after the scandals discrediting the military's efforts to stamp it out.

Hagel reacted with "frustration, anger, and disappointment over these troubling allegations and the breakdown in discipline and standards they imply," said a Pentagon statement.
President Obama has ordered Hagel to make sure anyone involved in the sexual assaults is held accountable.
New York Sen. Kirsten Gillibrand has said the military has had enough time. She plans to introduce a bill this week taking the handling of sexual assaults out of the chain of command and making military prosecutors responsible from the moment an allegation is lodged.
The problem has been around for decades but gained national attention after the Tailhook scandal in 1991, and again in 2003 when Air Force Academy cadets were accused of raping female cadets.



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