THE ADJUDICATION OF SEXUAL MISCONDUCT OFFENCES IN THE MILITARY

THE ADJUDICATION OF SEXUAL MISCONDUCT OFFENCES IN THE MILITARY

A female soldier in Iraq is more likely to be raped by a fellow soldier than killed by enemy fire
— Representative Jane Harmon, March 8, 2010.

The military of any nation is indeed its defence and strength as a major responsibility of this all important body is the protection and defence of a state and her people. While it is indeed a noble profession that requires a lot of sacrifice and sometimes discomfort, this piece examines the ugly trend of sexual assault and misconduct against females within the military by male colleagues in the military. This trend sadly, occurs in military forces all over the world although this work will be restricted to jurisdictions where reports of such abuse have been made and the attendant efforts if any, made to curb this evil.

Historically, the media highlights the issue of sexual assault in the military by focusing on high profile cases. These cases result in public outrage and the military in turn focuses its efforts on the issue of sexual assault. The issue of sexual assault in the military services drew international attention in the early 1990s and with each high profile case, more media attention was recorded. Media coverage of military sexual assault cases draws attention to the Armed Forces, which in turn, leads to a perception that the military is a male-dominated culture that fosters a climate where sexual assaults are prevalent. While the military wants to ensure public confidence and transparency by providing the public with information, high-profile sexual assault cases have led to public criticism regarding prosecution and punishment for sexual assault in the military services. In reporting these cases, one must consider the following questions: do the vast majority of military sexual assault cases receive proper investigation and adequate disposition through the military justice system? Are the cases featured in the media anomalies of an otherwise effective system, or are they examples of how the military justice system is less effective than its civilian counterparts?

On 8th November 1996, The Daily Record reported that drill sergeants, among others, at Aberdeen Proving Ground, a training installation in Maryland USA, engaged in consensual and non-consensual sex offenses against young enlisted women trainees. Eventually, the Army charged twelve commissioned and noncommissioned officers with sexual assault against female trainees.

The former US Secretary of Defence Chuck Hagel in May, 2013 in addressing sexual misconduct/assault within the military said:
Sexual assault . . . strikes at the core of the military. “This department may be nearing a stage where the frequency of this crime and the perception that there is tolerance of it could very well undermine our ability to effectively carry out the mission and to recruit and retain the good people we need. Pentagon estimates of how many troops are sexually assaulted show the numbers increased by 35% since 2010, from 19,300 service members believed to be victims that year to 26,000 in 2012, according to a Department of Defence (DoD) survey released.

Further drawing attention to this issue, sexual misconduct cases came to light in the US in 2003 that involved members of the highest levels of the Army, such as the Sergeant Major of the Army Gene McKinney and Major General David Hale, who were both tried by courts-martial. Sergeant Major of the Army McKinney, the Army’s top ranking enlisted soldier, was charged and tried by court-martial for sexual assaults and obstruction of justice. The most senior Army officer to be tried by court-martial in more than fifty years, Major General Hale, was convicted of sexual misconduct, fined, and administratively reduced to brigadier general.

In a substantial percentage of the sexual assault cases, the victim is intoxicated when he or she is sexually assaulted. Under military law, the focus is on the accused’s perceptions of the victim’s level of intoxication, which is likely to be based on the accused’s self-serving description of the victim’s conduct.

Sexual assault offenses occurring within the United States on military installations are within the criminal jurisdiction of at least two sovereigns, depending on where the assault occurs. The military services may not take jurisdiction over some cases where other authorities have concurrent jurisdiction. Offenses on a military installation in areas of exclusive federal legislative jurisdiction may be prosecuted by the U.S. Attorney’s Office in U.S. District Court or by military prosecutors in courts-martial; offenses occurring outside the military installation, or on areas of concurrent legislative jurisdiction within military installations, may be prosecuted in state courts or by military prosecutors in courts-martial.

On January 2, 2013, President Obama signed the 2013 NDAA into law. The 2013 NDAA, Section 572 requires the DoD to collect deposition records of sexual assault, unrestricted reports, including court-martial, non-judicial punishment, or other administrative action. The deposition file is required to contain all documentary information collected regarding the case (not just investigators’ reports), and a list of the records required is included in Section 572. Deposition records must be maintained for a period of at least twenty years, and some reports will be maintained for fifty years. Section 575 requires the DoD to include greater detail in annual reports on sexual assaults, including reasons for any dismissal of charges, character of discharge when an accused is administratively discharged or allowed to resign, any prior offense or admission to the service on a waiver for a sex offense, branch of service of accused, involvement of alcohol in the offense, and specific punishment given at non-judicial punishments.

Israel’s Military Justice Law (MJL), 4715-1955 as amended, established a system for the adjudication of Isreal Defence Force (IDF) active service soldiers, reservists, and military contractors accused of having committed military or criminal offenses while in service. The MJL provides for adjudication by military courts or alternatively through disciplinary proceedings depending on the gravity of the offense and the rank of the accused. Although the MJL has been amended numerous times, there have not been any significant statutory changes to the IDF adjudication system since the MJL’s entry into effect in 1955. Reform of the IDF’s adjudication in disciplinary proceedings, and especially in cases involving sexual offenses, has instead evolved through changes in military policies in response to new challenges posed with the passage of time and requirements imposed by Israel’s Supreme Court. Some important changes to the adjudication system include the removal of the determination of adjudication from the chain of command in some cases and new requirements for legal training or IDF-specific training in dealing with sexual harassment offenses.

Several changes have taken place in recent years that impacted the adjudication of sexual offenses within the IDF. These include the way in which the determination of whether to pursue an adjudication is made and the forum for such a determination. Unlike the adjudication of other violations of military law, the decision on whether to adjudicate sexual offenses in disciplinary proceedings can only be made by the Military Advocate General’s (MAG’s) attorneys and not by commanders. An additional development in adjudication of “lighter” sexual offenses in disciplinary proceedings is the requirement that presiding Adjudication Officers (AOs) be at least at the rank of Lieutenant Colonel and have either a legal education or special training in handling sexual harassment cases at the IDF School of Military Justice. Israel’s Military Advocate General (MAG) maintains a database of AOs who are qualified to adjudicate sexual harassment cases. The selection of the AO for such disciplinary proceedings from the database is made by the MAG and not by a commander.

According to the MJL, “where a soldier below the rank of Lieutenant General is charged with a military offense the penalty for which does not exceed three years’ imprisonment, and which was perpetrated either in Israel or outside of it, a disciplinary officer shall have power to try him disciplinarily.” Among offenses that are considered “a military offense” for the purpose of disciplinary adjudication are offenses under the Law for the Prevention of Sexual Harassment, 5758-1998. Unlike offenses such as rape or battery, which are adjudicated by military courts outside of the chain of command, other “lighter” offenses under the law, such as treating a person in an offensive way because of her or his gender or sexual orientation, are usually handled in special disciplinary proceedings.

GSO 33.0145 provides that victims of sexual offenses may seek assistance, treatment, and guidance by contacting their commanders (except where the commander is the alleged offender themselves, soldiers appointed by the commander to handle sexual harassment complaints, or the unit’s medical or mental health officers, as well as EEO (Equal Employment Opportunity) personnel. Victims may be reassigned to a different unit after having being heard and following consultation with their commander. Commanders who have been informed of allegations of sexual offenses must report such complaints to adjutant officers and in their absence to the EEO, to their own unit commanders, and to the MAG. A report alleging perpetration of sexual offenses will not be forwarded to a commander if the soldier requested confidentiality or when the commander is the subject of the complaint.

The Nigerian Armed Forces Act Cap A20, LFN 2004 which is very similar to the Armed Forces Act of the UK also deals with cases of sexual misconduct in the military. Sections 77 to 81 of the Nigerian Armed Forces Act provides for offences that fall under sexual misconduct. Highlights of some of these provisions are:
Section 77 provides that a person subject to service law under this Act who has unlawful carnal knowledge of a woman or girl without her consent or with her consent if obtained—
a) by force or by means of threat or intimidation of any kind; or
b) by fear of harm; or
c) by means of fake and fraudulent representation as to the nature of the act; or
d) in the case of a married woman, by impersonating her husband,
is guilty of an offence under this section and liable, on conviction by a court-martial, to imprisonment for a term not exceeding fourteen years or any less punishment provided by this Act.
Section 78 further provides that a person subject to service law under this Act who has carnal knowledge of a girl, being under the age of sixteen years is guilty of an offence under this section and liable, on conviction by a court-martial, to imprisonment for a term not exceeding fourteen years or any less punishment provided by this Act.

Section 79 also makes having carnal knowledge of a fellow officer’s spouse or the spouse of anyone subject to service law an offence which is punishable by imprisonment for a term of five years. The section however provides that for conviction in such a case, there must be corroborated evidence of the witness.

At the core of the existence of the military in any country, is discipline and respect for law and order. Officers and personnel of the military are expected to conduct themselves with decorum, restraint and the highest level of decency and discipline. Where these attributes are lacking in a military officer and he degenerates to sexually assaulting a female colleague or civilian, his recognition as an officer and a gentleman collapses. Rape or sexual assault is probably the highest form of offence that a man can commit against a woman (except killing her). So where an officer descends so low as to sexually assault or rape a woman, he should be summarily dealt with by the full force of the laws that are applicable. It is also important to add that military institutions all over the world, should desist from sweeping cases of sexual assault of women by military personnel under the rug. The American example as mentioned in this piece is laudable. Where the dignity of a female officer is violated and compromised, her capacity to effectively perform her duties and functions are greatly limited if not totally diminished and this could put the lives of her colleagues both male and female in jeopardy.

Sokombaa Alolade