The collapse of the sexual-assault trial of Army Brig. Gen. Jeffrey A. Sinclair in Fort Bragg highlights the U.S. military’s problematic and arbitrary record on meting out justice in such cases.

The defense claims undue pressure to prosecute a high-ranking officer came from top military brass. The prosecution has had doubts about the veracity of the accuser. All this bolsters New York Democratic Sen. Kirsten Gillibrand’s cogent argument for removing the authority of military commanders to prosecute sexual-assault cases and giving that power to military lawyers outside the chain of command.

Gillibrand’s bill failed to overcome a Senate filibuster by just five votes earlier this month. Instead, the Senate last week showed extraordinary accord in approving, 97-0, another bill, sponsored by Sen. Claire McCaskill, D-Mo., that keeps commanders in charge of these cases but gives the civilian secretary of a military service the final say in cases where a prosecutor wants to move ahead with a sexual-assault case but the commander disagrees.

Other measures bolster support for victims and ban the so-called “good soldier defense,” forcing the military to recognize that a professional soldier can also be a sexual predator. The House won’t consider the measure until late spring, and lawmakers there also should approve these steps toward justice.

Sinclair is accused by a captain under his command of ordering her to perform sexual acts with him in Afghanistan in 2011 during a three-year extramarital affair. The general admits to the affair but denies the assault charges. Sinclair sought a plea deal on lesser charges, but prosecutors declined. Then, in February, the lead prosecutor expressed doubts about the captain’s credibility before resigning.

Last week, after reviewing a series of emails regarding the Sinclair case, the presiding judge said prosecutors may have rejected a plea bargain based on political pressure. He dismissed the jury and told prosecutors to work with the defense to hammer out a plea deal. Sinclair’s attorneys claim that the Army pressed ahead with a weak case for fear of political blowback if they dropped the charges against a high-profile defendant. What a mess.


Sexual-assault cases are often difficult to prosecute, whether in civilian or military courts, but the U.S. military has a particularly egregious track record. Rather than basing going to trial on the evidence and strength of a case, military prosecutors must rely on commanders’ discretion. That’s an arbitrary system.

Last year, outraged after a commander overturned a guilty verdict in a sexual-assault case, Congress stripped military commanders of the authority to overturn jury convictions. It also required a civilian review when a commander declines to prosecute a case.

Gillibrand plans to bring her bill up for another vote in late spring when both the Senate and the House will be working on broader defense policy bills. Companion legislation also is pending in the House.

The Sinclair case shows just how conflicted the U.S. military remains about how to deal with sexual-assault accusations, especially when it comes to higher ranking officers. Meantime, the Pentagon has estimated that as many as 26,000 military members may have been sexually assaulted in 2012, based on an anonymous survey. That’s 26,000 potential victims and, perhaps, an equal number of abusers.

Gillibrand’s bill would take military rank out of the equation, while keeping these crimes within the military’s purview, but independent of the command chain. That’s a better system of military justice for all men and women in uniform.

Editorial by the Miami Herald

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