The Military’s Burden of Proof

Sexual assault awareness in the military has received attention recently, from TV shows such as “House of Cards” to Congressional legislation. Sexual assault cases in the military have increased in recent years, rising to about 3,500 reported cases. The United States military has endured recent scrutiny for not properly handling the few reported instances of sexual assault.

Critics cite lenient sentencing and general oversight as huge barriers toward improving the military’s track record handling these types of cases. Army Brigadier General Jeffrey A. Sinclair is the highest ranking U.S. military officer to be court-martialed and the most recent case of military personnel narrowly avoiding just punishment. General Sinclair’s trial exemplified the considerable faults in the system’s reporting of sexual abuse and the prosecution of these alleged offenses.

General Sinclair was charged with sexual assault which would, if found guilty, have given him life in jail. The female captain, whose name was not released, working under Brig. General Sinclair brought forth two charges: she was forced by the general to give him oral sex, and he threatened to kill her and her family if she ever disclosed the nature of their relationship. The captain and General Sinclair had been involved in a consensual affair since 2009 while deployed in Iraq and Afghanistan. Yet as the relationship continued, the captain testified that she feared General Sinclair was using her for sex and no longer wished to pursue the relationship. According to the defense, her personal records, including diary entries and text messages, constructed a different story. One of a woman who feared losing the lasting relationship with General Sinclair, a married man.

Because of the nature of the punishment for these lesser charges, General Sinclair will not spend a single day in jail. He will remain a member of the United States military, potentially demoted as a lieutenant colonel, be privy to his military benefits and pension, and his $5,000 fine will only burden him for four months.

As with most cases, the prosecution carried the burden of proving whether the crimes took place as opposed to the defense proving General Sinclair did not assault the captain. The burden of proving the existence of a hostile environment or the instance of sexual assault is a complicated and traumatic affair for victim. There was not enough substantial evidence that the relationship was non-consensual or that the accounts of assault occurred, therefore General Sinclair was not convicted of the highest charges against him.

The sexual assault charges were pushed to the side, and instead lesser charges of adultery, possession of pornography in a war theater (Afghanistan) and other misconduct offenses became the center of the case. The case of General Sinclair receiving a lenient sentencing, among other examples of the military not fully prosecuting sexual assault, has lead those in Congress to question the military’s authority in handling cases of extreme sensitivity. Senator Kirsten Gillibrand of New York authored a bill that would allow sexual assault cases to be handled in civilian courts, out of the hands of military commanders who often have conflicts of interest in these cases.

In the case of General Sinclair’s trial, Judge Colonel Pohl ruled that emails exchanged between the special victim’s counsel for the prosecution “raised the appearance of unlawful command” and therefore swayed the defense in their decision to bypass a plea deal. Supporters of Senator Gillibrand’s bill claim unlawful command, or the unnecessary involvement of a senior official in a military hearing, as disrupting the potential for proper justice. Whether General Sinclair would have been convicted of sexual assault in a civilian court is a strong point of contention, although according to Paul Woolverton from the Fayetteville Observer, “Even the defense team said that they were stunned at the sentencing.”

The consensual or nonconsensual nature of the relationship between the captain and General Sinclair is irrelevant. The acts of sexual assault were isolated incidents and could have still occurred in a consensual relationship.

General Sinclair should not only have to discredit the allegations of the captain, but also prove that he did not commit assault. Every court relies on the burden of proof to convince the jury of a guilty or non-guilty verdict, but the sentencing is largely subjective.

Victims of sexual assault watch their assailants walk away with convictions that are nowhere near just. The people who we elect to Congress are unwilling to make meaningful policy change in the right direction. It was only last year that women were allowed to serve in combat roles, a huge milestone in a nation that prides itself on the values of “liberty and justice.” But what kind of message does the military send women who want to serve in combat? Rampant, unresolved sexual assault cases do not entice women into joining the military, if anything it is an intimidating factor.

Military commanders must be accountable for their actions, and blind trust cannot be placed in high-ranking officials. Legislation is key to correcting the recurring fallacy shown by military commanders: that power omits individuals from accountability. Only when military members realize that their actions have consequences and legal implications will there be a chance.


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