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Viewing the Sinclair Sexual Assault Case Dispassionately

jeffrey-sinclair-hair-too-fucking-long

My latest for The Hill, co-authored with Butch Bracknell, has posted. They’ve titled it “Explaining the Sinclair demotion.”

In a piece I wrote yesterday morning that may or may not soon be published elsewhere, I reflected on the changing state of blogging. A key takeaway is the value of the conversation the medium provokes, which frequently causes me to strengthen my argument and not infrequently causes me to change positions entirely. The Sinclair piece is an example of the latter.

The case of Jeffrey Sinclair, the former deputy commander of the Army’s 82nd Airborne Division involved in a sordid sex scandal, has been a lightning rod in the controversy over sexual assault in our armed forces. It ended last Friday with Sinclair reduced two ranks, from brigadier general to lieutenant colonel, and sent into retirement. For those who believe the military doesn’t take sexual assault seriously, the fact Sinclair served no jail time and was allowed to retire with a generous pension was an outrage. For those who think there is a politically correct witch hunt, Sinclair’s demotion, despite being convicted of only relatively minor charges, was excessive. It was, however, a just and lawful result.

[...]

[W]hatever one believes actually happened, the Army was not able to prove the most serious charges against Sinclair, which could have netted him life in prison, reduction in rank to private, dismissal from the Army and forfeiture of all benefits. Proof was virtually impossible in this case given the alleged victim’s massive credibility issues, so prosecutors did in this case what they do in the exercise of prosecutorial discretion in similar cases all over the country in civil contexts: They accepted a plea deal on lesser charges. There is nothing unusual or extraordinary about this outcome, in that, nationwide, district attorneys and assistant U.S. attorneys sign off on deals like this every single day. Given what Sinclair was convicted of, confinement would have been excessive, unwarranted and unprecedented. Finally, as McHugh noted, they were outside the scope of his authority. “During Capitol Hill hearings, I was asked whether Sinclair would receive a pension after proceedings were complete,” McHugh said. He added, “Under federal law, if a person has earned a pension because of their years of service, they are entitled to those benefits; Congress might consider a change in the law that would allow greater flexibility and accountability.”

 

It is interesting to ponder what the outcome would have been in this case if such a statute had been on the books when the secretary made his grade determination. If he had the authority to discount Sinclair’s unblemished service up through the rank of lieutenant colonel and strip him of his pension for the conduct proven, by his own admissions, at his court-martial — essentially, having an affair with a person who worked for him — would the political pressure have led the secretary to do so? From McHugh’s testimony, in which he essentially blamed Congress for passing statutes that tied his hands and prevented him from discharging Sinclair with no retirement benefits, the answer appears to be yes. In our view, this is the real danger lurking in this entire issue — the temptation to allow the fervor of reform to infect just determinations in individual cases. Sinclair served for well over two decades honorably and, evidenced by his promotions, extraordinarily well. Stripping him of retirement benefits for misconduct that simply may have gotten him fired at Microsoft or General Motors is an emotional answer to a set of issues best analyzed rationally and dispassionately, for the future health of the force. Enhancing the secretary’s power to strip officers of their earned benefits simply based on an administrative proceeding, governed by malleable standards and procedural rules, is treacherous territory, if the armed forces value their ability to promote and retain the best officers to senior leadership positions.

That’s pretty much 180 out from my initial reaction to the news.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Rafer Janders says:

    Well, was what Sinclair did wrong? How can we know? Even if we presume there’s actually an objective process for identifying right and wrong in complex decisions where counterfactuals aren’t available to us, there’s no such process available to us here. Myself, I don’t think having an affair with your subordinate in the military is right. But that’s an opinion, not a falsifiable fact. We don’t have the counterfactuals that would prove to us that maybe having an affair with your subordinate is the better way to go….

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  2. James Joyner says:

    @Rafer Janders: But we know what the law says and what Sinclair has pled guilty to.

    Like or Dislike: Thumb up 1 Thumb down 0

  3. Ron Beasley says:

    I have mixed feelings on this. I worked for a major multinational corporation and had a very attractive female boss. We both got divorced at about the same time and then took off on a long business trip. During that long trip we had separate hotel rooms but usually only one of then was occupied. Then affair continued when we returned from overseas.
    The reality is if you are a salaried worker you spend more time with your coworkers than you do with your family at home. I was faithful to my wife until the divorce but the divorce was a game changer.

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  4. Rafer Janders says:

    @James Joyner:

    Separate issue of right and wrong, though. Hey, it’s your standard, your own self-professed nihilistic worldview that we can never tell right from wrong, good from bad. I’m just applying your principles.

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  5. James Joyner says:

    @Ron Beasley: Agreed. While I support strongly the notion that bosses should not use their power to secure sexual favors from their subordinates, and understand that there’s by definition an unequal power relationship, I do realize that not infrequently real attraction and even genuine emotional bonding occurs. Most institutions, including the military, have procedures for allowing for that, usually involving changing the reporting chain, by interdepartmental moves if possible. That’s hard to do in small organizations, though.

    @Rafer Janders: I make no such claim; in fact, I reject it. I’ll continue my response on the other thread, since I don’t want to hijack this one.

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  6. Cletus says:

    The military needs to ease up. We recently lost one of our best soldiers ever in Afghanistan in a story that has received very little media coverage.

    http://abcnews.go.com/Blotter/jim-gant-top-green-beret-officer-forced-resign/story?id=24266710

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  7. Mu says:

    There’s a huge difference between a work place affair and an affair in the military. For once, the work place affair is not illegal by statute. It might be against company regulations and can have all kinds of legal consequences for the company, but you can’t get arrested for it. The military affair is against the letters of the law, and by law, the higher ranking person has a huge influence over the subordinate. It’s not like the captain can go and look for another army to serve in when she’s trying to get out from under the general.
    I don’t think going after the earned pension for years of honorable service is warranted, but the guy should have been publicly dismissed from the officer corps instead of retired.

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  8. Matt Bernius says:

    @Mu:

    The military affair is against the letters of the law, and by law, the higher ranking person has a huge influence over the subordinate.

    I think this is worth repeating — especially given the recent attention to the potential unlawful military influence of statements made by the President and the Marine Commandant:

    http://www.outsidethebeltway.com/marines-sexual-assault-conviction-overturned-over-command-influence/

    http://www.outsidethebeltway.com/more-on-unlawful-command-influence/

    If you accept that a superior making a verbal statement is enough to significantly influence the behavior of subordinates, it pretty much makes consensual relations between individuals of different ranks within the same military branch impossible.

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  9. Another Mike says:

    @Matt Bernius:

    If you accept that a superior making a verbal statement is enough to significantly influence the behavior of subordinates, it pretty much makes consensual relations between individuals of different ranks within the same military branch impossible.

    Yes, this is about the truth. It has to do with the difference in power between the two individuals. Does the weaker person really have the option of saying no? There is always the worry of retaliation by the senior person.

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  10. Andy says:

    James,

    Considering you are a former military officer I’m quite shocked that you would compare a GO’s conduct with an employee at GM or Microsoft. The issue with Sinclair is not merely about adultery(which is a “crime” that is almost never prosecuted absent other misconduct), but fraternization with his own subordinate. An affair is one thing, an affair with an officer under your command is quite another and it is toxic to any military organization particularly when it happens at the most senior level. And it wasn’t just one officer, it was four.

    Secondly, you make the “years of service” argument against a harsher punishment. That is a de facto “different spanks for different ranks” argument and one that ensures that seniority will always be mitigating factor for military punishment. With that rubric a mid-career NCO would get confinement and a BCD for the same actions. What justification is there for such a discrepancy in punishment especially when the relative authority and responsibility of of a General vs and NCO is considered?

    We should expect a higher standard of conduct from our GO’s and the mere fact that they attained that high rank, particularly in today’s careerist military, should not afford them special protection from accountability for incompetence or criminal behavior.

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  11. James Joyner says:

    @Andy: Had Sinclair have been convicted of rape, as initially charged, he would have been rightly confined to prison, reduced to private E-1, dishonorably discharged, and stripped of his pension and benefits. He wasn’t.

    The reason has was busted two ranks—which initially struck me as too severe given what he was actually convicted of—is that his crimes were committed over several years, overlapping his time as a colonel and BG. He was thus retired at the last rank at which he served honorably, LTC. And we’re arguing that, absent conviction for crimes warranting a BCD, his honorable service for the first twenty-odd years of his career entitle him to his pension.

    My co-author, who wrote the last paragraph—although I endorse it completely—is himself a recently retired Marine lieutenant colonel. Of course we understand that military leadership is different. The point of the comparison, though, is that we would never take away someone’s vested pension in the private sector. It’s an incredibly harsh penalty and the Secretary of the Army was apparently seeking to impose it.

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  12. Andy says:

    James,

    His criminal punishment was a reprimand and a $20k fine. That’s it. Even without the rape, what Sinclair did was plenty sufficient to warrant a much tougher punishment than he actually received. And it’s quite like anyone of junior rank would have received confinement – I’ve seen it happen for GTC violations alone.

    So, I think the administrative downgrade was completely warranted considering the criminal punishment was basically nothing. That said, I agree with your piece that administrative downgrades shouldn’t be made any easier. The problem is that the military criminal justice system treats GO’s much too kindly.

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  13. James Joyner says:

    @Andy: I wrote a masters course paper in, I think, an admin law class some 25 years ago–after commissioning but before going on active duty—on the military justice system. The upshot, which I still think was right, was that the civilian system was better if you were a bad man while the military system was better if you were a good man. That is, you were more likely to get acquitted for your crimes in a civilian court, which would only look at the evidence for that particular crime but more likely to get justice in a civilian court, which would look at the totality of your time in uniform. Sinclair acted abhorrently and disgraced the uniform and his office as a colonel and a brigadier general. The system recognized that and stripped him of those ranks; that is a disgrace he’ll carry with him forever. But the system also recognized a long and stellar career up through that point and allowed him to keep his pension and other benefits. That strikes me as a reasonable balance.

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  14. Andy says:

    James,

    I think that could be a reasonable balance. The problem is that balance isn’t applied consistently, far from it.

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  15. James Joyner says:

    @Andy: It’s not. It’s pretty much the same anywhere, I’m afraid. If you’re a low-level worker who punches a time card, you may well get fired if you’re 15 minutes late two days in a row. If you’re a senior manager, you get a lot more slack, since your schedule is understood to be flexible. And if you’re the CEO? Well, people can just effing wait 15 minutes if you’re late to meet with them because you’re that important.

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