Taking Sexual Assault Prosecution Away From Military Commanders

In which I change my mind on an important topic.


As the issue of sexual assault by military servicemen gained attention some years back, calls came to take the authority to prosecute away from commanders. I’ve opposed this policy change, arguing that the issue was one of good order and discipline within the ranks and that commanders who failed to do their job in protecting their female troops should be relieved. While my faith in the ability of commanders has not wavered, the secondary issue of “unlawful command influence” and over a year of conversations with now-retired Marine JAG James Weirick changed my mind.

We collaborated on a piece for War on The Rocks, which published it this morning as ”Sexual Assault in the Military and the Unlawful Command Influence Catch-22.” It’s well over 2000 words but the crux of it is this:

In order to address the burgeoning issue of sexual assault in the ranks and combat the perception that dealing with it was not a priority, President Obama, service secretaries, service chiefs, and commanders down to the lowest levels mounted an aggressive campaign to highlight the severity of the issue to service members. Thousands of speeches were given and extensive training was instituted. This very campaign was found to constitute “unlawful command influence” under Article 37(a) of the Uniform Code of Military Justice, which provides that “No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings” and that “No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.”


Military justice is simply different. Because military jurors are under obligation to follow the orders of those above them — and in particular the president, secretary of defense, and senior generals — the command climate and references to the wishes of senior leaders are much more difficult for military jurors to discount. Civilian jurors are simply not subject to that same pressure. Which, in turn, means military defendants need more protection than their civilian counterparts.


While it’s true that some commanders have failed to vigorously do their jobs in prosecuting sexual assault as a serious crime, that’s fixable. The real problem is that commanders have two jobs here — sending the message that sexual assault will not be tolerated and prosecuting those who break the law — that are in conflict. Because the first of those jobs is essential to the commander’s role while the second can be done by objective outside professionals, the two must be split.

The unlawful command influence restriction unnecessarily hampers senior leadership from trying to solve serious issues like the sexual-assault problem. While [then-Marine Commandant James] Amos was particularly ham-fisted in his messaging, his heart was in the right place by placing great emphasis on an issue that was impacting the welfare of the female Marines in his charge and the cohesion of his Corps.

And, of course, no one is going to stop the president of the United States or service secretaries from grandstanding when a military issue comes into the spotlight and puts pressure on them to weigh in. Commander-in-chief is only one of many hats the president wears and declining to speak out in the face of public perception that sexual assault is rampant in our armed forces would be unthinkable.


It is time to remove felony crimes from military jurisdiction. Military leaders have an obligation to address issues such as sexual assault and do all that they can to eradicate this scourge from our ranks. But as recent history had clearly demonstrated, these laudable efforts continue to result in criminal trials that courts find unfair and are forced to dismiss. The solution is to remove these cases from military jurisdiction, thus enabling commanders to continue to communicate openly with their units without impacting the fairness of criminal trials.


Much more at the link.

FILED UNDER: Gender Issues, Law and the Courts, Military Affairs, , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Tony W says:

    Well stated sir. On a side note I have a ton of respect for those that choose the daily beating that is JAG. There are few jobs on the planet as thankless.

  2. DrDaveT says:

    You changed your mind on an important issue when confronted with a valid (though complex) argument. That’s far too rare these days — congratulations. I applaud you.

  3. Davebo says:

    Military justice is simply different. Because military jurors are under obligation to follow the orders of those above them

    I’d argue that most everyone faces those tensions but still it’s a good point.

    @Tony W: JAG is a tough post but when over 50% of JD graduates face unemployment it’s also a life saver to some.

  4. MarkedMan says:

    James, I know this is going over old territory, but do you have any insight as to why this is different wrt to Unlawful Command Influence than, for example, military commanders stating they will not tolerate insubordination and exhorting their command structure to do the same?

  5. stonetools says:

    Wait a second , James, you admitted you were wrong on the Internet? Isn’t that in violation of all Internet Traditions? Anyway, thanks for changing your mind after careful consideration of the evidence and arguments. Maybe you ‘ll start a new trend( and maybe I’ll find a unicorn).

  6. James Joyner says:

    @Davebo: Oh, people face pressures from their employers all the time, sometimes in ways that those in the military don’t. Here, though, the boss wears a second hat as the referring authority for a criminal trial and the employees wear a second hat as jurors in that trial. I can’t think of a comparable conflict outside the armed forces.

    @MarkedMan: It would be perfectly fine for military leaders, uniformed and otherwise, to merely state that sexual assault is intolerable. POTUS on down have gone well beyond that. For example, a 2013 conviction was overturned based on this:

    Navy Judge Cmdr. Marcus Fulton ruled during pretrial hearings in two sexual assault cases — U.S. vs. Johnson and U.S. vs. Fuentes — that comments made by Obama as commander in chief would unduly influence any potential sentencing, according to a court documents obtained by Stars and Stripes.

    On Wednesday and Thursday, Fulton approved the pretrial defense motions, which used as evidence comments that Obama made about sexual assault at a May 7 news conference.

    “The bottom line is: I have no tolerance for this,” Obama said, according to an NBC News story submitted as evidence by defense attorneys in the sexual assault cases.

    ‘I expect consequences,” Obama added. “So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable — prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged. Period.”

    The judge’s pretrial ruling means that if either defendant is found guilty, whether by a jury or a military judge, they cannot receive a bad conduct discharge or a dishonorable discharge. Sailors found guilty under the Uniform Code of Military Justice’s Article 120, which covers several sexual crimes including assault and rape, generally receive punitive discharges.

    “A member of the public would not hear the President’s statement to be a simple admonition to hold members accountable,” Fulton stated. “A member of the public would draw the connection between the ‘dishonorable discharge’ required by the President and a punitive discharge approved by the convening authority.

    “The strain on the system created by asking a convening authority to disregard [Obama’s] statement in this environment would be too much to sustain public confidence.”

    Similar rulings have been issued based on a nationwide tour by then-Commandant of the Marine Corps Jim Amos and others. The sort of admonitions that leaders issue to change the culture will almost always cross this line.

  7. MarkedMan says:

    @James Joyner: Thanks James. I guess I never paid close enough attention to it to understand what the fuss was about. Obama seems to have blown it.

  8. DrDaveT says:

    Late breaking news on this subject, from the New York Times:

    Bowe Bergdahl’s lawyer is attacking John McCain for possibly interfering with military justice. “A day after the disclosure of an Army lawyer’s recommendation that Sgt. Bowe Bergdahl face neither jail time nor punitive discharge for walking off his Army outpost in Afghanistan in 2009, Senator John McCain, chairman of the committee that oversees promotions of senior military commanders, said that Sergeant Bergdahl was ‘clearly a deserter’ and that he would convene a hearing if the sergeant was not punished,” the New York Times’ Richard A. Oppel Jr. reports. “Mr. McCain’s statement drew a sharp rebuke on Monday from Sergeant Bergdahl’s lawyer, partly because the four-star Army general who will ultimately decide the fate of Sergeant Bergdahl is considered likely someday to face a hearing for his next job before Mr. McCain’s committee. Sergeant Bergdahl’s lawyer, Eugene R. Fidell, accused Mr. McCain of improperly seeking to influence the outcome of a major military prosecution.”

  9. James Joyner says:

    @DrDaveT: Yup. I don’t know how you’d prevent Senators from doing this sort of thing and, unlike rape allegations, I don’t think this is something that you can take outside of military tribunals given the uniqueness of the charge to military life. But I’d think it pretty good grounds for appeal.