Fraternization and GoD

The Army legal websites are back en clair, having been unavailable to the public for about five to six weeks.  Of course, they came back up just as the AFCCA and CAAF were going dark.  Anyway.

United States v. Commisso, No. 20140205 (A. Ct. Crim. App. 29 April 2016),

has an interesting discussion and resolution of “inappropriate relationships” under ¶4-14.b., AR 600-20.

The accused Army E-7 began an interaction with a Marine E-2.

Appellant met Marine Private First Class (PFC) EW1 on the morning while both were at physical therapy at Tripler Army Medical Center (TAMC). They talked, got to know each other, and eventually PFC EW gave appellant her phone number.

Appellant contacted PFC EW via text message that same day, and they made plans to go to dinner and a movie that night. Because PFC EW’s injury prevented her from driving, appellant picked her up at her barracks at Marine Corps Base Hawaii. Private First Class EW’s injury prevented her from walking and necessitated the use of a wheelchair. Appellant and PFC EW went to dinner at Cheesecake Factory, which PFC EW described at appellant’s court-martial as an “expensive” restaurant. According to PFC EW, appellant tried to hold her hand during dinner and later he kissed her on the forehead. After dinner, they unsuccessfully tried to see a movie and ended up going on a motorcycle ride instead. At the end of the evening, appellant asked PFC EW if she wanted to stay at his apartment or have him take her home. Private First Class EW testified that she felt “obligated” to stay at his apartment because he bought her an “expensive” dinner.

Once inside appellant’s apartment, PFC EW took a morphine pill and fell asleep on his couch while they were watching television.

You will imagine what is alleged to have happened next, likely events that lead to allegations of sexual assault.  Appellant was charged for violating Army policy by:

“wrongfully having an inappropriate relationship with [PFC EW] which was, or was perceived to be, coercive in nature and created an adverse or clearly predictable adverse impact on discipline.”

The ACCA concludes that the evidence was neither factually nor legally sufficient to support the charge.  They appear to have followed the principle I and others argue, that in these cases, not every interaction between a senior and junior is automatically prejudicial to GoD.  Factors the court considered and which should be argued in future cases include:

  • The government presented no evidence this difference in rank had any impact on the events of the evening.
  • The government simply presented no evidence that PFC EW felt coerced by appellant’s rank or position in the Army to give him her phone number or to go out to dinner with him.
  • On appeal, the government places great emphasis on the fact that PFC EW felt ‘coerced” to stay at appellant’s apartment with him at the end of the evening. However her testimony indicated any apparent “coercion” came from the fact that appellant bought her an “expensive” dinner, tried to take her to a movie, and took her on a motorcycle ride—not the fact that he was a senior enlisted soldier in the Army.
  • The government failed to prove beyond a reasonable doubt that this “relationship” had any adverse or clearly predictable adverse impact on discipline.