The Canary in the Military Justice Mineshaft: A Review of Recent Sexual Assault Courts-Martial Tainted by Unlawful Command Influence
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Authors
Visger, Mark
Issue Date
2022
Type
Journal articles
Language
Keywords
Military Law , UCMJ , Unlawful Command Influence , Criminal Law , Due Process , Sexual Assault
Alternative Title
Abstract
In the seventeen-month period from May 2017-September 2018, military appellate courts reversed five sexual assault convictions based on the legal doctrine of Unlawful Command Influence (UCI). This doctrine is designed to protect accused military members who are facing court-martial by ensuring that the decision-maker involved in a court-martial decides the case based on its merits rather than based on the desires of commanding officers. Two recent sexual assault cases have been significantly influenced by concerns of UCI, including the high-profile court-martial of Brigadier General Jeff Sinclair. Of particular note is the court-martial of United States v. Riesbeck, where the civilian Court of Appeals for the Armed Forces (CAAF) reversed a forcible rape conviction with prejudice for “court stacking” (specifically, intentionally selecting female panel members (e.g., jurors) with the objective of increasing the chances of conviction in a sexual assault case) using the very strong language noted in the preamble to this article.
This article examines the five sexual assault cases mentioned above and the greater context in which they were decided. The article will begin by examining the origins of the doctrine of unlawful command influence in the aftermath of World War II, which originated in direct response to commanders’ attempts to actively direct the outcome of specific courts-martial. It will then turn to the congressional effort to remove court-martial jurisdiction from commanders, with a focus on decisions made by Air Force Lieutenant General Franklin in two sexual assault courts-martial and the repercussions he faced as a result. Finally, the article will review the Joint Proceeding Panel report findings as well as the recent appellate court decisions and conclude with observations for addressing these concerns.
Description
Citation
Visger, Mark, The Canary in the Military Justice Mineshaft: A Review of Recent Sexual Assault Courts-Martial Tainted by Unlawful Command Influence ( 2020). Mitchell Hamline Law Journal of Public Policy and Practice, Volume 41, Issue 1, pp. 59 - 97 (2020), Available at SSRN: https://ssrn.com/abstract=4237827
Publisher
Mitchell Hamline Law Journal of Public Policy and Practice