As public anger grows in reaction to the epidemic of rape and sexual assault in the U.S. military, defense attorneys are trying to use expressions of that anger by politicians to protect their clients from punishment—and some military judges are buying their arguments.

In Hawai'i, for example, Navy Judge Cmdr. Marcus Fulton ruled last week that two sexual assault defendants may not punished with a negative discharge if they are convicted in their upcoming trials because comments made by President Barack Obama could unduly influence their sentencing.

At issue is the concept of “unlawful command influence,” which the judge defined as “improper interference with the court-martial process...that influences a decision that should be made independent of command policy or command prerogative.”  

Although the defendants had claimed that numerous statements by Pentagon leaders and others constituted undue influence, the judge found undue influence only in comments that Obama made about sexual assault at a May 7 news conference. At that time Obama said as follows:

“The bottom line is: I have no tolerance for this, I expect consequences. So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable, prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged. Period.”

Although Fulton did not rule that the comments could or would unduly influence a military jury, he did hold that they created in the public a belief that such influence existed. “A member of the public would not hear the President’s statement to be a simple admonition to hold members accountable,” wrote Fulton. “A member of the public would draw the connection between the ‘dishonorable discharge’ required by the President and a punitive discharge approved by the convening authority.”

The ruling means that if either defendant is convicted, he cannot be punished with a bad conduct discharge or a dishonorable discharge, and could receive an honorable discharge allowing him to collect veteran benefits. The case also opens the door for other military defense attorneys to use the same argument in sexual assault cases throughout the military.

Obama is not the first leader whose comments about the rape crisis have benefited military defendants. Last year, Marine Corps Commandant Gen. James Amos publicly declared that 80% of sexual assault claims were legitimate, prompting Marine Corps defendants in more than 60 sexual assault cases to file unlawful command influence claims. Judges accepted those arguments in nearly all of the cases, according to a McClatchy report.

-Matt Bewig

To Learn More:

Judge: Obama Sex Assault Comments 'Unlawful Command Influence' (by Erik Slavin, Stars and Stripes)

Military Judge: Obama’s Comments On Military Sex Abuse An “Undue Command Influence”  (by Doug Mataconis, Outside the Beltway)

U.S. v. Ernest Johnson (Military court ruling) (pdf)

Sexual Assault Measure to be Dropped from Military Bill, Keeping Cases in Chain of Command (by Noel Brinkerhoff, AllGov)

85,000 Vets Treated for Sexual Abuse Injuries and Trauma in 2012 (by Danny Biederman and Noel Brinkerhoff, AllGov)

Air Force Version of Punishing Sexual Assault: No Promotion (by Matt Bewig, AllGov)