A few months ago Congress approved changes to how the military handles cases of assault and rape in the ranks. The road taken — and the one it's rejected — might have had real world implications in two high profile military sexual assault cases resolved in the past week.
Both cases played out in military courtrooms while Capitol Hill was locked in a months-long debate over whether to change how the Defense Department investigates and prosecutes similar cases. In December, Congress passed sweeping changes to how military officials will handle assault and rape cases in the future. And as the cases neared their conclusion, the Senate approved more changes pushed for by Sen. Claire McCaskill (D-Mo.) that would grant protections to victims and extend current protections to students at military academies. But senators also rejected a separate plan by Sen. Kirsten Gillibrand (D-N.Y.) that would have stripped military commanders of the power to decide how to handle assault and rape cases, and hand over such powers to professional prosecutors.
So how might these cases have gone differently if Congress had acted more quickly or approved the Gillibrand proposals? Aides to McCaskill and Gillibrand agreed to discuss the case and hypothetical outcomes so long as they weren't identified, because they are not authorized to speak publicly on the matter. They also stressed that it's impossible to know how things might have transpired if Congress had acted sooner or differently. But let's take a look.
The Jeffrey A. Sinclair Case
Sinclair is the brigadier general spared a jail sentence but reprimanded and fined $20,000 by a military judge last week after admitting to carrying on a prolonged, turbulent affair with an officer under his direct command. His sentence came after the Army agreed to drop the most serious charges against him in exchange for his admission that he “maltreated” the junior officer.
Army prosecutors initially charged him with assault in addition to adultery, which is a crime in the military. While he admitted to an adulterous relationship with a junior officer, he vigorously denied sexually assaulting or threatening the captain.
Sinclair's attorneys exploited holes in the accuser's story by introducing e-mails and text messages in court that showed how the accuser remained enamored with Sinclair long after she asserted he had assaulted her. Those revelations nearly derailed the prosecution's entire case against Sinclair and the chief military prosecutor on the case quit after his superiors rejected his advice to drop the most serious charges.
In civilian court, "the sexual assault charges would never have seen the inside of a courtroom," said one McCaskill aide. "And if commanders lost the ability to launch courts-martial, this victims would never have gotten her day in court on the most serious charges — charges that both command and prosecutors believed were valid."
Gillibrand's aides argue things a little differently, suggesting that if commanders hadn't been involved in the case and hadn't pressured military prosecutors to proceed with the most serious charges despite holes in the case, the prosecution of Sinclair would have focused just on adultery and other lesser charges and he likely would have faced more than just a monetary fine.
Eugene R. Fidell, who teaches military justice at Yale Law School and supports Gillibrand's proposals, agreed that "There would have been a different outcome had lawyers been driving the train." If the case had been handled entirely by specially-trained prosecutors -- as Gillibrand has proposed -- then Sinclair never would have been charged with assault, Fidell said.
One thing that both camps agree on: The accuser in the Sinclair case had the assistance of a Special Victims Counsel, a lawyer supposed to ensure that the accuser's rights are fairly considered throughout the proceedings. Supporters of the program believe that access to such representation will encourage other people to step forward and expose similar accusations -- and in this case helped ensure that Sinclair was at least punished for the minor offenses.
Gillibrand after the Sinclair verdict that his case "illustrated a military justice system in dire need of independence from the chain of command." And one of her supporters in the House, Rep. Jackie Speier (D-Calif.) called Sinclair's sentence "a mockery of military justice" and a "laughable punishment."
Sarah Feldman, a spokeswoman for McCaskill, said the senator considered the Sinclair case "a complicated one. But one of its lessons highlights what we already know -- that commanders are often more aggressive than prosecutors in pursuing prosecutions and vetting these cases."
The Joshua Tate Case
On the same day that Sinclair learned his fate, a military judge found Midshipman Joshua Tate, a former Navy football player not guilty of sexually assaulting a female classmate.
In the Tate case, the accuser -- a 22-year old Academy senior -- initially did not want to report the incident but was forced to after another student threatened to do so. She then refused to cooperate and tried to get the defendants to lie to investigators to stop the case. She eventually changed her mind and went public last May by saying that the academy superintendent was trying to bury the case.
The situation likely would have played out differently if McCaskill's proposals had already been law, because the reforms she pushed for now extend protections to accusers attending the military academies, aides said. And if Gillibrand's proposals were in place, the superintendent would not have been able to bury the case, other aides said.
Gillibrand described the Tate case as "yet another example of a completely broken military justice system. The commander in this case was such an obstacle to justice being served he was sued by the victim. Despite the evidence, only after media pressure did the commander reverse himself and permit an investigation to go forward."
Ultimately, how either of these cases would have been resolved "is an imponderable thing," Fidell said. "These events have played out under the harsh blare of senatorial interest. The general and admiral who were the convening authorities were attempting to function in a highly-charged atmosphere."