Leaders must watch their words on military sexual assault

Most are now familiar with the NMCCA decision in United States v. Howell.  In that case, compared to several others, the court found there was UCI affecting the trial and granted the appeal in Howell’s favor.  Howell is not out of legal jeopardy, because the court decided:

A rehearing may be ordered.

And it is reported that Howell is still in pretrial confinement., while a decision is made on whether to conduct a retrial or administratively separate him with an OTH.

In a piece in The Hill, the title of which is also the title of this post, the writers note:

This ruling should serve as a clarion call to military justice reformers on Capitol Hill not to throw the baby out with the bathwater. While major reforms in the military justice system may be warranted, including those enacted during the last legislative cycle, the system must carefully toe the line between effective accountability for sexual assault aggressors and a system that is fair, transparent, reliable and law-bound.

As those of us who practice military law, either as military defense counsel, prosecutors, or legal advisors know, there is a difficult to find line between doing justice and doing injustice.  A central premise of this country’s constitution is that an accused is entitled to a constitutionally fair trial, the presumption of innocence, and the right to defend themselves in a court of law.  Trial by Congress or media is neither just nor justice.  Unfortunately, due to a number of high visibility cases that may themselves be anomalous in the larger context, decision makers are suggesting making change the results of which may create more problems than they solve.  Howell is a case in point.  Without knowing the facts of the allegation we can’t know or assess his guilt.  What we do know is that the complaining witness may have to go through a trial twice.  If she is a victim then this cannot be helpful to her.  If  Howell is not guilty, and perhaps falsely accused, then he has suffered twice.  Neither of these results is useful in the task of eliminating sexual assault or maintaining the actual and the perception of a fair military justice system.  The writers close with this admonition.

 it should also alert executive branch leaders that protecting the constitutional and statutory rights of those who volunteered to serve is a moral imperative similar in quality and magnitude to the duty to protect victims of sexual assault. Military justice reform is necessary and required, but Congress must not let the pendulum swing freely at the expense of the rights of men and women serving our nation in uniform.

Well said.