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Friday, March 07, 2014

Civilian Court-Martial Defense Lawyers: Senator Gillibrand's Bill to Yet Again Change the Military Justice System Has Failed


In the never ending saga of Congressional debates about a topic that, at best, they only pretend to understand - that being military court-martial trials and allegations of rape and sexual assault in the military justice system (UCMJ Article 120) - Senator Kirsten Gillibrand's bill to yet again change the military justice system to try to ensure (i.e. stong-arm) that every rape or sexual assault allegation is prosecuted (regardless of merits) and that the military accused's opportunity to raise a defense continues to be eroded - has failed.  Her bill did not receive the 60 votes required to pass. 

Of course, she vows to continue her quest.  One story appears here: 

While some argue the merits of Senator Gillibrand's bill versus the bill proposed by Senator Claire McCaskill, the point with regard to both bills is that they are two different proposed paths aimed at the same outcome - making changes to the military justice system to try to ensure:

*Every alleged military rape/sexual assault case is prosecuted
*Every military accused is hopefully convicted
*Every military accused is hopefully sentenced harshly
*Every military accused is hopefully denied clemency 
*Every military accused is prevented from fully defending himself...  

In the lengthy Senate debate on this issue, I wonder if anyone brought up the issue of the fairness of the system for those military members accused of rape or sexual assault, or protecting the rights of the accused and the ability to mount a defense in these cases.  I haven't yet read the debate (I am intentionally avoiding it to preserve my sanity on this Friday), but I would be shocked if there was anything about those "pesky" issues  like an accused military member's constitutional rights to due process and a fundamentally fair court-martial process.  You can find links to the debate here:

As I said in another blog post, I wonder how the politicians, government officials and military officials who continue to push for changes to the military justice system would feel if a child of theirs was facing an allegation of rape or sexual assault in the military?  Would they still be beating the drum that?:

- The accuser must be telling the truth.  No one lies about these allegations or misperceives events.

- The accused (my child) must be guilty.

- The accused (my child) doesn’t deserve a fair court-martial.

- The accused (my child) shouldn’t question the credibility, motives, or perception of the accuser.

- The accused (my child) shouldn’t “re-victimize” the accuser by asking for discovery and admission of contrary evidence.

- If the accused (my child) is not prosecuted, the military justice system has failed.

- If the accused (my child) is not convicted, the military justice system has failed.

- If the accused (my child) doesn’t receive a harsh sentence, the military justice system has failed.

- If the accused (my child) is granted clemency, the military justice system has failed.

And, lest we forgot, the accused is a member of the United States military, who swore to protect and uphold the Constitution through service and sacrifice, which could include taking life or losing his/her own life.  Shouldn’t they be entitled to the rights and protections of the Constitution they are willing to kill or die for?  Shouldn’t they be entitled to a fair military justice system? 

As I keep saying:  It is a very sad chapter in the history of the military justice system.

For more information about the military justice system, particularly cases alleging rape and/or sexual assault in violation of UCMJ Article 120, type “rape” or “sexual assault” into the search bar above the blog posts.  Also, see:

We offer free consultations for a case you may be involved in.  Just call us.

Thank you.    

By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, P.C.

Blog postscript: Attorney Frank J. Spinner and I (attorney Richard V. Stevens) are former active duty military lawyers (JAG). Our perspectives and advice, therefore, are based upon our experience as military defense lawyers and as civilian criminal defense lawyers practicing exclusively in the area of military law and military justice. This blog addresses issues in military law, military justice, military discipline, military defense, court-martial practice, the Uniform Code of Military Justice (UCMJ) and other military and/or legal topics. Nothing posted in this blog should be substituted for legal advice in any particular case. If you seek legal advice for a particular case, please contact The Law Offices of Richard V. Stevens and The Law Office of Frank J. Spinner for a free consultation. These military defense law offices are located in Northern Florida (Pensacola, Ft Walton, Destin, Eglin AFB, Hurlburt Field, Duke Field, Panama City, Tyndall AFB areas) and Colorado Springs, Colorado (FT Carson, Peterson AFB, Air Force Academy, Schriever AFB, Cheyenne Mountain Air Force Station, Buckley AFB areas), but our military defense law practices are worldwide – we travel to wherever our clients are stationed or serving and need us.

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