"Sexual assault is an outrage; it is a crime. And if it's happening inside our military, then whoever carries it out is betraying the uniform that they're wearing. So I don't want just more speeches or awareness programs or training but, ultimately, folks look the other way. If we find out somebody is engaging in this stuff, they've got to be held accountable, prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period."
When President Obama spoke these words last May, admonishing sexual offenders in the military, he likely did not foresee the backlash that would ensue. This criticism came to a head last week when New York Times' Jennifer Steinhauer reported that Obama's comments have already tainted a dozen trials and are expected to complicate prosecution in future cases. Citing the term "dishonorable discharge", Steinhauer suggests Obama's seemingly well-intentioned suggestion constituted unlawful command influence, which occurs when a person wielding great authority or power – i.e. a military commander or commander in chief – orders a specific outcome to a court martial. Steinhauer then listed a number of recent cases that have already been impacted by Obama's remarks.
Practitioners and law professors have been quick to weigh in on the discussion. Former Army judge advocate general and current dean of Washburn Law, Thomas J. Romig, predicts a significant reaction to Obama's message from military defense counsel in particular, referring to the specificity with which Obama recommended "dishonorable discharge" – the severest of discharges available to courts martial. Military law professor at Yale Law, Eugene R. Fiddel, predicts that, due to Obama's position of influence – being that he is commander in chief – his comments are "going to come up in basically every imaginable context in sexual assault cases." Military defense experts have also spoken out, fearing that juries will be persuaded by the President's remarks to the point of prejudicial bias against service members facing allegations of
sexual assault, resulting in predetermined, unfair trials.
Others disagree or choose to remain neutral. University of Florida Levin College of Law professor, Diane H. Mazur, does not believe Obama's comments have risen to the level of being "so specifically directed, or so inflammatory, that a military defendant is deprived of due process", while associate dean at New England School of Law, Victor M. Hansen, merely observed a tension between providing the victim his or her day in court and staying "mindful of a defendant's rights."
With the Internet abuzz in the wake of Steinhauer's report, a number of news stories have broken in the days since the article's release. In response to the media uproar, the White House counsel released the following statement via Kathryn Ruemmler:
"The president was absolutely not trying to be prescriptive. He was listing a range of examples of how offenders could be held accountable. The president expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment."
If you or someone you know has been accused and charged with sexual assaul in the military, then your first step should be consulting with an experienced military criminal defense attorney. Contact Dishman Military Advocates today to discuss your case.