Military Law Review-WTR

There are a couple of interesting items in Vol. 224, MIL. L. REV.

MILITARY JUSTICE INCOMPETENCE OVER COMPETENCY DETERMINATIONS, by Major David C. Lai.  This is relevant to me because I have an appellate case where there are issues with the client’s current competency and there were at trial.

ALWAYS ON DUTY: CAN I ORDER YOU TO REPORT CRIMES OR INTERVENE? By Major Matthew E. Dyson.  This is highly relevant in regard to the ongoing sexual assault issues and considerations of by-stander behavior.

V. Conclusion

The momentum of the current Department of Defense push to prevent sexual assault should not be a reason to hastily promulgate criminal sanctions for not intervening or reporting sexual assault. A hyperreactionary response to the current political climate would fail to take into account practical considerations undermining the efficacy of such an approach. It is probably lawful to craft an order requiring the reporting of specific crimes witnessed by all service members regardless of rank; however, such an approach is short sighted. Moreover, a duty applicable to all soldiers to physically intervene to stop sexual assault or to stop a soldier from driving drunk is likely unlawful.

Variations of these types of orders may be lawful, but they are, without question, not advisable, and frankly foolish. Converting all of the Army into law enforcement officials tasked with physical intervention to stop crimes would be trailblazing of historic proportions not seen in any other segment of society or the law. No other jurisdiction in America requires physical intervention as the only method to comply with duty to rescue laws. Even in the few jurisdictions that have enacted duty to rescue statutes, witnesses may comply by notifying law enforcement for assistance.265 Such a radical change must be avoided at all costs. Instead, the Army needs to focus its sexual assault prevention plan on fostering an environment of dignity and respect of all of its teammates. The Army requires a cultural shift and major changes in attitudes, not a change in the law. The center of gravity should be dignity and respect for all, with an emphasis on building trust. Appeasing political pressure should not be a reason to dramatically alter the law.

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