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View Diary: Old white man decides to leave military sexual assault decisions in the hands of old white men (175 comments)

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  •  so what would you change (1+ / 0-)
    Recommended by:
    ksuwildkat

    to make the military justice system "reliably find facts and guilt in sexual assault cases?"

    We changed the law, twice, including once where we changed so much that the courts said it was unfair to the accused.

    We added special victim prosecutors, victim advocates, and the like whose sole focus was/is on sexual assaults.

    We added civilian experts to our Trial Counsel Assistance Program.  Folks who I can tell you are definitely true believers on the prosecution side.

    So what specifically would you propose to change?

    •  They have nothing (0+ / 0-)

      Dont even try.  All they have is empty anger.  The vast majority of the posters here, including the OP, have no more substance than the Tea Baggers on Free Republic with their wild conspiracies.  

      UCMJ is bad, it should be different.
      Military bad, it should be different.
      Fire all commanders.

      The idiocy of a separate justice system for each type of crime is amazing.  Can you imagine if you had separate courts for murder, rape, robbery, child abuse, etc.  There are 57 punitive articles in the UCMJ including Article 134 which is "anything not covered in the proceeding articles."  By the logic presented here the military should have a minimum of 57 separate courts with 57 separate standards for justice.  Even more stupid is the idea that if you take away responsibility for rape cases from commanders they will suddenly care MORE.  When in history has taking responsibility away from someone increased their concern for that?

      It is well that war is so terrible -- lest we should grow too fond of it. Robert E. Lee

      by ksuwildkat on Wed Jun 12, 2013 at 03:05:49 PM PDT

      [ Parent ]

      •  Are You Talking About Me? (0+ / 0-)
        All they have is empty anger.  The vast majority of the posters here, including the OP,

        Are you referring to me?

        "When the going gets weird, the weird turn pro." - HST

        by DocGonzo on Wed Jun 12, 2013 at 03:09:21 PM PDT

        [ Parent ]

        •  Original Diary (0+ / 0-)

          but based on your post below, yes.

          It is well that war is so terrible -- lest we should grow too fond of it. Robert E. Lee

          by ksuwildkat on Wed Jun 12, 2013 at 03:40:00 PM PDT

          [ Parent ]

          •  Cowardice Aside (1+ / 0-)
            Recommended by:
            RoseWeaver

            OK,  now that you're actually talking to me, rather than just about me to someone else, let's get this straightened out.

            I just responded to your post calling me stupid. You're not just insulting while being wrong (even as we mostly agree, though you act like we don't). You're also going around denigrating me, without even the courage to indicate there that you're talking about me, let alone confront me with your vicious posts.

            Stop being such a douchebag.

            "When the going gets weird, the weird turn pro." - HST

            by DocGonzo on Thu Jun 13, 2013 at 10:38:26 AM PDT

            [ Parent ]

      •  look I'm not going to pretend (1+ / 0-)
        Recommended by:
        ksuwildkat

        that everything is hunky dory.  It isn't.  I have my own ideas for how things can be improved in the military justice system.  For example, giving military judges tenure, creating and allowing talented military attorneys to track in criminal law (right now, and as I may find out in two years, attorneys who specialize in criminal law can find themselves less competitive for promotion to higher ranks because the focus is on breadth of skills, not depth in one area) can't hurt things.  I also think taking yet another stab at some of the definitions in sexual assault cases involving alcohol would be a good tool to allow prosecutors to get convictions.

        I don't think that giving it to the civilians is going to do anything like what some think it will do, nor do I think taking it completely out of the hands of commanders will, but I can see some measures that might help such as getting rid of the broad clemency powers of commanding generals, or that make it harder to go against the advice of their senior legal advisor in cases where said adviser recommends going to trial.

        There's room for improvement, so I understand looking at it that way.  But I don't think things are "worse" in the military now than in the civilian world, because were I a victim, and goodness knows don't want that, I have not seen anything in the civilian realm that makes me prefer that to the military.

        That isn't necessarily a positive for the military as much as it is a negative for society.

        •  Absolutely (0+ / 0-)

          Its a shame that we dont treat the criminal JAGs like we do the ones for Intel Law.  Its perfectly acceptable for a lawyer to specialize in intel law and remain competitive.

          Mixed feelings on the alcohol.  We seem to be imposing prohibition by default by criminalizing more and more drinking.  Things like banning consumption of alcohol at Presidio of Monterey because of misconduct at Ft. Hood?  Alcohol should be neither an excuse for or against bad behavior.  Non-concentual sex is illegal drunk or sober.

          Like you, I would much rather take my chances - on either side - in a military court than a civil one.

          It is well that war is so terrible -- lest we should grow too fond of it. Robert E. Lee

          by ksuwildkat on Wed Jun 12, 2013 at 04:11:54 PM PDT

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    •  Civilian Justice (0+ / 0-)

      We could start with rapes outside active war theaters treated as crimes under the jurisdiction of the local civilian police, prosecutors and judges. Outside the US subject to whatever governs non-military Americans in that foreign country. The military chain of command would make determinations of violation of military rules and laws based on the facts determined by civilian courts, and decide whether further action within military protocol is appropriate. No military interference with civilian justice.

      Once we establish how that works, and probably for other crimes too, we can work on the more difficult question of how to handle reports of these crimes in active war theaters, or where there is no civilian jurisdiction recognized by the US, or elsewhere military command is the jurisdiction. And then change that as much as necessary to get justice in that different context.

      "When the going gets weird, the weird turn pro." - HST

      by DocGonzo on Wed Jun 12, 2013 at 03:08:21 PM PDT

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      •  Speaking of Galactically Stupid... (0+ / 0-)

        Because military post ALWAYS have a great relationship with local law enforcement.....and it would be just AWESOME to go to trial in Afghanistan....or Yemen...Wait come to think of it, that would REALLY solve our rape issues because in Afghanistan they would stone the victim and give the rapist a goat.

        Why not just set up separate courts for what ever crime people are mad about on any given day?

        It is well that war is so terrible -- lest we should grow too fond of it. Robert E. Lee

        by ksuwildkat on Wed Jun 12, 2013 at 03:46:46 PM PDT

        [ Parent ]

        •  Stupid (1+ / 0-)
          Recommended by:
          RoseWeaver

          You are stupid. I just said that civilian justice should be responsible for crimes like sexual assualt, not that there should be separate courts.

          There are, however, problems with civilian courts for violations of military code. War is a major exception to civilian justice; almost everything that makes it war is illegal outside war. That means that as long as we have war, as long as we have a military making war, we have to have a military justice system that is at least somewhat separate from the civilian one.

          But only where that is necessary due to the exceptional status of actual war. Not just for anyone or anyplace in the military. Which is why I made that distinction clear, as what should be done rather than civilian deference to military jurisprudence as is practiced now.

          And where we are making war, we have to establish whether US laws or the local laws regulate the Americans who are there fighting it. When we make war we have to have a legal basis for judging crimes by Americans, or in American controlled territory, according to US law, or a version of it designed to cope with the problems of a US war zone.

          Just saying "we're Americans" or "this is American ruled territory" when Americans commit crimes, or others commit crimes against/on us, without a legal basis before the crimes are committed is not enough. This is hard, but war is hard. We can do hard things, and ensuring justice is done is one of the hard things we must do when we go to war.

          For what it's worth, it is precisely because war cannot be accommodated by a civilian justice system that I am against war. But the reality is that we have war, we have a military that makes war, and we need to change what we can to reduce how much war abuses people, without making that depend on the unforeseeable future when we eliminate war.

          Now, stop being so stupid. You don't even really disagree with me, when you're making sense. You keep attacking me obnoxiously where we at least mostly agree. Make more sense or shut up.

          "When the going gets weird, the weird turn pro." - HST

          by DocGonzo on Thu Jun 13, 2013 at 10:36:34 AM PDT

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      •  let me share my perspective (0+ / 0-)

        I do not see any way that in most cases the local civilian criminal justice system will be better, that they will prosecute more cases, that they will treat victims better or that they will investigate better.

        It wouldn't solve anything because as it stands right now, we are taking cases the civilians refuse to prosecute.  As I said, a significant chunk of these cases are:

        1. wrongful or abusive sexual contacts (grabbing, rubbing, etc).  These usually get prosecuted by the military when it happens multiple times with multiple women, but we just prosecuted one that happened more or less once with one woman.

        2.  drunk sex encounters where the woman was intoxicated and the accused was either also intoxicated or not.  Sometimes this involved him plying her with alcohol but often did not.

        I just described a large majority of the sexual assaults I have seen on both sides since 2003 in the military.

        Those cases are not cases the civilians are going to touch.  Several of the cases I've tried in the last couple of years were taken because the civilians specifically declined to prosecute.  We even have a child abuse case that is a strong winner that the state took almost a year to decide they didn't want it.

        I just don't see how civilian automatically equals better.

        •  Civilian Is Better (1+ / 0-)
          Recommended by:
          RoseWeaver

          Yes, there are problems with the civilian justice system. The answer is not to hand them to the military justice system, but rather to fix the civilian justice system.

          If the military justice system is better, the civilian one should be changed to adopt those ways that are better. US civilian justice should be the best possible, without even the exceptions military justice must include to cope with its dedication to effectively doing grave injustices to the enemy, and the necessary sacrifice of rights by people on our own side when doing them.

          I said:

          We could start with rapes outside active war theaters treated as crimes under the jurisdiction of the local civilian police, prosecutors and judges. Outside the US subject to whatever governs non-military Americans in that foreign country.

          To be clear, Americans involved in military actions in foreign countries should be governed preferably by US law unless under control of a foreign government. And when under that foreign control, which might (depending on the circumstances of a particular war) be any time they're outside an American base, they have to be careful to abide by foreign laws, even when they're in conflict with American laws. And if that's too risky, Americans should either not be in that position, or accept that some of the casualties of war will be by foreign law.

          Until the hard to imagine day that we have no Americans at war anywhere anymore, we have to accept that making war will make it difficult for Americans to live under only American law. But because we can expect this difficulty will persist, we have to make American law apply as much as we can to Americans wherever they are, leave military justice to purely military matters, and otherwise accept that foreign laws apply in foreign countries even to Americans, even while we're at war there.

          "When the going gets weird, the weird turn pro." - HST

          by DocGonzo on Thu Jun 13, 2013 at 10:46:47 AM PDT

          [ Parent ]

          •  how is it better? (0+ / 0-)

            I don't mean to be a jerk, but just saying "it's better" isn't very compelling given my own experiences.

            In what ways is it specifically better?

            Here's the next problem, if the vast majority of rapes are now tried in the civilian system, then you have REALLY inexperienced military prosecutors trying these cases in war areas.

            As for foreign/non-war countries, are you really going to be that blase?  There are many nations that have laws we would find rather unfair.  It isn't the Soldier's fault that the military has assigned them to such a nation.  Nor is it always the case that Soldier's who are accused of crimes are guilty, so I would think the idea of saying, well, too bad deal with it if you get into trouble overseas is inexplicable to me.

            We want the military to try and be responsible for those folks, under our laws...that's why we have Status of Forces Agreements that allow that to happen.  And we aren't the only ones who do that by the way.

            It certainly wouldn't hold to your standard of applying "American law to Americans."

            Second, you seem to have a misunderstanding that Military law is somehow not "American law."

            First, the military rules of evidence VERY closely track the federal rules of evidence.  A federal criminal justice participant watching a courts-martial and seeing the rulings and rules used would not be watching something anything than very familiar.

            Second, supreme court law is binding on military courts, and appellate court law is highly persuasive.  We also have our own, civilian appellate court, the Court of Appeals for the Armed Forces.

            You have a poor opinion of military justice clearly, but with all due respect you've done not much to show why, or why civilian justice is better.

            Put another way, is it not possible, that the issues in the military with sexual assaults might have a lot less to do with the lawyers and judges and the actual trial process, and more to do with other areas?

            •  Chain of Command (1+ / 0-)
              Recommended by:
              RoseWeaver

              For example, military justice is subject to intervention by military commanders, regardless of the outcome of the military justice until that point. This is of course the entire issue at hand, the subject of this article.

              Meanwhile, your defense of military justice as superior is that it's subject to various parts of civilian justice.

              As far as the risks of foreign laws applying to Americans there: that's how laws and jurisdictions work. Either Americans work out treaties with foreign countries allowing American civil law to govern Americans there, or Americans should of course be subject to foreign laws. Of course enemy countries we're invading are an exception, but American civil law should apply to all but strictly military actions.

              And if that's not acceptable, it should be an impedence to Americans going to war there. Where they can be shot by the enemy, in addition to captured and tried under their laws.

              "When the going gets weird, the weird turn pro." - HST

              by DocGonzo on Thu Jun 13, 2013 at 04:39:15 PM PDT

              [ Parent ]

              •  so the answer is (0+ / 0-)

                you don't know.

                You don't think there are pressures in the civilian justice system?  You think DAs take drunk sex cases very often? Do you think they take he said/she said cases that aren't slam dunks?

                Which system currently has Congress and the media focused on it? Congress is focused on taking away the ability of the General to reverse a verdict.

                Of course, the occurrences of this can be counted on one hand out of thousands of trials a year, but there isn't a ton of resistance in fact several of the top military lawyers said, mighty fine to do it.

                You've not listed one way the justice system is worse in the military than the civilian world, yet you propose a widespread and sweeping change.

                With all due respect, you don't seem particularly knowledgeable about either the civilian criminal justice system or the military criminal justice system.

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