Brigadier General Jeffrey A. Sinclair's trial on sexual assault charges began the day after the Senate blocked a bill that would change the way such cases are handled. Sinclair, the former deputy commander of the 82nd Airborne Division and a onetime rising star in the Army, is Exhibit A in why the current system needs to be changed -- and it isn't the reason you may think.
In a nail-biting roll-call vote last Thursday that pitted allies against one another, woman against woman and veteran against veteran, 10 Republicans supported a measure sponsored by Democratic Senator Kirsten Gillibrand that would have removed sexual assaults and other major crimes from the military chain of command. Ten Democrats voted against it. Senators Ted Cruz and Rand Paul, who are potential Republican presidential candidates, voted yes and were warned by Senator Lindsey Graham that he would remind folks that they showed themselves "willing to fire every commander in the military.”
Democratic Senator Claire McCaskill, who has proposed a bill that changes the way sex crimes are handled but keeps responsibility for prosecution within the chain of command, voted against Gillibrand's version, which failed 55 to 45. (On Monday, McCaskill’s bill passed the Senate 97-0.)
Everyone agrees something has to be done about this plague. The fight is over what that something should be. Rapes and assaults are rampant in the military -- 26,000 last year, according to the Pentagon. A year’s worth of Senate hearings made clear that these crimes aren’t being handled appropriately in house. If an assault is reported -- many aren't -- there’s no confidence justice will be done. Too many friendships, too many institutional relationships, too much raw power in the hands of the accused cloud judgment. Complainants are pressured to grin and bear it in the interests of unit cohesion. Those who speak up are often isolated, sidelined or transferred.
It’s a complicated mess, as the 2012 Oscar-nominated documentary “The Invisible War” and many television series, including this season’s "House of Cards," show.
A new plot twist is playing out in the Sinclair case at Fort Bragg, North Carolina. The judge on Monday dismissed the jury while he considered an e-mail chain, revealed over the weekend, between the prosecution team and a top Pentagon lawyer. Sinclair, who is married, is charged with forcing himself on a captain 21 years his junior with whom he’d had a consensual affair. The general acknowledged the affair and pleaded guilty to lesser charges, including possession of pornography and adultery, in hopes of getting the more serious assault charges, which he denies, dropped. By ordering the prosecution to reject the plea, the judge ruled that the brass had exerted "undue command influence."
The e-mails showed that prosecutors were concerned because the accuser had testified untruthfully at an earlier hearing. Concluding the victim had lied, the former lead prosecutor in the case, Lieutenant Colonel William Helixon, resigned last month after he tried, and failed, to get the brass to accept the plea and drop the most serious charges against Sinclair. In December, a lawyer for the accuser had argued in a letter that the plea should be turned down because accepting it would "have an adverse effect on my client and the Army's fight against sexual assault."
The recently disclosed e-mails showed the prosecutors discussed her letter, a potential violation of the military code of justice, which requires cases to be decided on the evidence and without regard to political implications.
This isn’t fiction, but real life. And it raises the question of whether the political winds are now blowing in favor of victims. Are commanders now overcompensating for years of turning a blind eye to sexual abuse by prosecuting even when their own lawyers urge restraint?
The events at Fort Bragg are a perfect demonstration of the urgent need for the kind of change that Gillibrand has demanded: Cases must be removed from the chain of command to ensure they aren’t exposed to pressure from generals in the Pentagon. Prosecutions shouldn’t be subject to politics, Gillibrand says, or to "the discretion of a senior officer or a commander who may like the perpetrator or might like the victim.”
Crimes involving sex and violence are no easier to handle inside the military than outside. They may even be harder to prosecute in a closed system where everyone knows everyone and where victims and perpetrators continue to work side by side, sometimes for each other.
Opening day on Friday gave us a taste of what such trials could be like: The accuser testified that Sinclair threatened to kill her family and forced her to have oral sex after she tried to end the affair. For its part, the defense cited e-mails in which the captain told Sinclair how much she enjoyed sex with him after he allegedly did those things. One of the messages was from the very day she decided to tell Sinclair’s superior officer that the general had assaulted her. She was furious, the defense contends, when she found out that Sinclair was having an affair with another woman.
It’s a new day for Sinclair with the ruling in his favor that his initial plea was rejected because of undue influence. On Tuesday, his attorneys said they had decided to try to negotiate another bargain with new representatives from the military. And the trial is suspended. The finding also is proof that Gillibrand has been right all along. She just didn’t know that the most prominent case to prove her point would favor the accused.
(Margaret Carlson is a Bloomberg View columnist.)
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