We take for granted that in the United States a person accused of a crime is presumed innocent until proven guilty.  The prosecutor has the burden to prove guilt.  The presumption of innocence applies at military courts-martial and during adverse administrative actions in the military.  Does this principle apply in practice? Are Soldiers, Sailors, Marines, and Airmen innocent until proven guilty of Article 120 sexual assault or Article 134 sexual harassment or some other violation of the UCMJ?

The U.S. Supreme Court has long recognized military justice as “a rough form of justice.” The reasoning goes like this:  To fight and win wars, the military justice system places good order and discipline ahead of achieving precise factual and legal outcomes.  Because “it is the primary business of armies and navies to fight or [be] ready to fight wars” the military justice system is primarily concerned with maintaining good order and discipline. Sometimes the military justice system gets it wrong, but what matters to the nation is that our military is ready to fight and win.  A certain level of collateral damage is acceptable.

“You Must Be Guilty of Something” And the Collateral Damage Problem

I have successfully advocated many times over the years for military members facing adverse administrative separation.  Punishment under Article 15, UCMJ (Nonjudicial Punishment, Captains Mast, Office Hours) often comes before an adverse separation action.  More than a few separation board clients have reported to me that their commander stated during Article 15 punishment, “you must be guilty of something.”  Punishment then follows.

A field grade officer recently stated to me, “sometimes collateral damage is necessary to fix a broader problem with the institution.”  He was referring generally to the sexual harassment and sexual assault problem.  The collateral damage he was referring to was my client.  Fortunately the members of the Board of Inquiry found my client had not committed misconduct and retained him in the military.  However, this comment from a senior Army officer reveals a danger inherent in a system of justice intended to fulfill a mission that does not always prioritize doing justice above other specific needs.

I have had great success countering the “you must be guilty of something” mentality during adverse separation boards (Enlisted) and Boards of Inquiry (Officers).  A guilty finding in a proceeding under Article 15, UCMJ (NJP, Captains Mast, Office Hours) does not require a guilty finding at the board.

I recently assisted a client accused of sexual harassment.  After a lengthy investigation, the Investigating Officer (IO) concluded that the accusing witnesses had motives to lie and exaggerate and were “not credible.”  However, the Sexual Assault Response Coordinator (SARC) objected to dropping the case on the illogical grounds that there was an allegation of sexual harassment and therefore my client must be punished.  The chain of command issued my client a formal reprimand and requested the higher-level commander file it permanently in the client’s personnel record.    Fortunately, we were able to convince the flag officer who had to make the final decision to file the reprimand locally.

Collateral Damage at Courts-Martial?

Military judges instruct court-martial panel members that an accused is innocent until proven guilty.  Miliary appellate courts assume that panel members follow this instruction.  But does the military judge’s instruction overcome the panel members’ habit of administering “rough justice” to maintain good order and discipline?

The military has a sexual assault problem.  The military also has a sexual harassment and domestic violence problem.  Prodded and threatened by Congress, the Department of Defense has given the military services their marching orders:  eliminate sexual assault, sexual harassment, and domestic violence from the ranks.  Subordinate commands have received their orders and will execute those orders through the military justice system.

Eliminating sexual assault, sexual harassment, and domestic violence from the military is an admirable goal.  But what happens when the military justice mindset of “you must have done something” and “acceptable collateral damage” intersects with the politicized push to eliminate a specific type of offense?

The U.S. military is accustomed to following orders – good order and discipline is an essential component of an effective fighting force. When military leaders identify a problem and then issue orders to solve that problem subordinates carry out those orders.

Presumed guilty of sexual assault or sexual harassment

For example, in response to Congressional pressure to solve the sexual assault problem, the DoD created the Sexual Assault Prevention and Response Program (SAPR).  Some scholars observing the impact of SAPR have concluded that the program causes commanders, prosecutors, and panel members to presume guilt in service members accused of sexual assault. These scholars have identified several bias-inducing processes between initial report, investigation, and court-martial.

A recent article in the Journal of the American Academy of Psychiatry and the Law Online May 2020, Panel Bias During Sexual Assault Courts-Martial states, “The SAPR atmosphere creates a presumption of guilt in the accused and unduly influences the decisions of stakeholders within the military justice system.” This presumption is shaped by the socialization of service members to always believe accusers and to take personal responsibility to stop sexual assault in the military. This presumption of guilt influences decisions to move cases forward to trial when an otherwise non-SAPR influenced-decision maker might see the case as unsupported by the facts.  SAPR indoctrination may cause decision-makers and panel members to see sexual assault accusations as proof of guilt. This indoctrination often leads to servicemembers being at risk for being found guilty of sexual harassment.

SAPR training creates a narrative that makes it easier for service members to understand the problem of sexual assault. However, it also creates a script in which accusers are always right and the accused is always guilty.  I certainly see this in the investigatory phase of sexual assault cases.  This systemic bias also impacts sexual harassment and domestic violence investigations.  Commanders are under tremendous pressure to solve the problem of sexual assault in the ranks – add the “you must have done something” and “acceptable collateral damage” mentalities to the mix and we have a military justice system focused more on outcome than process.

Dr. Karl Umbrasas, a forensic psychologist at Liberty University in Lynchburg, Virginia, says the SAPR-initiated bias manifests itself in the execution of military justice in three ways: First, the military trains commanders on SAPR, rewards them for compliance, and conversely punishes those who fail to comply. Second, when commanders say it’s their priority to stamp out sexual assault in the ranks, subordinates take on that mission and it influences their decisions in the courtroom. Finally, the influence of a ranking panel member who confuses SAPR policy for legal understanding may pressure other panel members to get in line with the ranking member’s viewpoint.  The indoctrination of SAPR interferes with the presumption of innocence. Those found guilty of sexual harassment can often remain perplexed about a situation where what they thought were unharmful comments brought career ending consequences.

Service members accused of sexual assault or sexual harassment face a significant risk of injustice

The Congressional mandate to obtain a predetermined result in sexual assault, sexual harassment, and domestic violence cases has created a significant risk of injustice.  Combined with the military’s culture of a “rough form justice” and acceptable collateral damage, the politicization of military justice endangers the presumption of innocence. Therefore, service members accused of sexual assault or sexual harassment face a significant risk of injustice.

If you are accused of sexual assault, sexual harassment or domestic violence, an experienced military lawyer on your side can make all the difference. Call now at (757) 504-2815 Or Contact the Law Office of Peter Kageleiry, Jr. today.