A comment by President Barack Obama on military sexual assaults --
deemed "unlawful command influence" by some judges -- is altering the conduct of
courts-martial throughout the services, and may factor into discharges and other
proceedings outside the courtroom.
The complications come in the midst of increased congressional and public scrutiny of sexual assault in the military over the past year.
That scrutiny led the president and senior military leaders to talk tough -- too tough, according to legal officials who say their overly specific comments about sexual assaults violated the Uniform Code of Military Justice, tainted juries and harmed the rights of the accused.
In May, Obama told reporters that servicemembers engaging in wrongful sexual activities must be "prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period."
One month later, Hawaii military judge Cmdr. Marcus Fulton ruled in arguments before U.S. v. Petty Officer 2nd Class Ernest Johnson that Obama's call for dishonorable discharges -- one of multiple options a military jury considers when they ponder sentencing -- could be interpreted as a commander-in-chief's orders. To remedy the perceived sentencing bias, Fulton ruled that should Johnson be convicted, he cannot receive a bad-conduct or dishonorable discharge. The ruling wouldn't keep a convicted sailor out of prison, but it could conceivably allow him to retain military and veterans benefits after serving any potential sentence.
Since that ruling, the president's words have become a commonplace defense argument in sexual assault hearings. Attorneys for Brig. Gen. Jeffrey Sinclair, accused of unlawful sexual contact in one of the military's most visible sex crime cases, brought up the argument during pretrial motions last month. Rulings on Obama's comments are pending in other trials in Japan, Hawaii and mainland U.S.
After Fulton's ruling, White House officials said Obama was listing examples of how those convicted of sexual assault could be held accountable, not intending to direct a particular result in any specific case.
Still, military trial judges, working without substantial higher court precedents, are coming to varying conclusions on whether and how Obama's statements have damaged the rights of the accused, and what they should do about it.
In a Yokosuka Naval Base pretrial hearing for a chief petty officer accused of sexual assault July 3, military judge Cmdr. John Maksym found that Obama's comments, as well as others by and Joint Chiefs Chairman Gen. Martin Dempsey, constituted apparent unlawful command influence.
But instead of ruling out punitive discharges, Maksym awarded the defendant five peremptory challenges, meaning his lawyers can dismiss five potential jurors without giving a reason. The military 26-justice system normally allows each side to do this only once.
The varying verdicts and arguments could persist unless the U.S. Court of Appeals for the Armed Forces, or CAAF, receives one or more cases that are large enough in scope to set a precedent.
No one is sure if, or when, that will happen during the current presidential administration.
"Eventually, the issue will 'burn off' as the effect of President Obama's comments dissipates over time," said Eugene Fidell, who teaches military justice
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