Friday, June 17, 2016

Ash Carter Justifies Strategy of Holding Servicemembers Accountable for Sexual Assault through Collateral Misconduct Convictions

SecDef Ash Carter recently put into writing a very true and troubling aspect of Military Justice in an attempt to justify how much more awesome military prosecutors are than civilian prosecutors: 

"Additionally, in both civilian and military judicial systems, defendants are often tried for "collateral misconduct” charges, such as lying to an investigator, in addition to an underlying crime. In both the military and civilian systems, it is sometimes difficult to obtain a conviction for sexual assault. It is a common practice for prosecutors to attempt to obtain convictions for collateral charges as well, which provide additional methods of holding an individual responsible for his or her acts in the event of an acquittal for the charge of sexual assault.

The military justice system has additional collateral misconduct charges that would not be available in a civilian criminal justice setting, such as conduct unbecoming an officer, adultery, and orders violations. The military also has a range of disciplinary and other tools available that have no civilian counterpart, such as non-judicial punishment and administrative discharges. Accordingly, in sexual assault cases, it is common that charges other than, or in addition to, a charge specifically for sexual assault may be pursued as a means of increasing the likelihood that the accused is ultimately held accountable."

Essentially, what Secretary Carter is saying is that the military is unique because Servicemembers can be tried for many crimes that civilians cannot be tried, for example adultery or 'conduct unbecoming an Officer.'  So, when a Commander has that really weak sexual assault case that civilian prosecutors would not touch with a ten foot pole because it never should see the inside of a courtroom,  military prosecutors can still hold an individual responsible for sexual assault with an adultery conviction, even if he is acquitted for sexual assault.

But, sometimes in the military, a sexual assault charge is actually the collateral misconduct for weak non-sexual assault charges to effectuate the Commander's intent to get the Accused kicked out of the military with a dishonorable discharge.  In other words, when a military prosecutor has a weak case for non-sexual misconduct that does not warrant a court-martial, sometimes they will search for a sexual assault "victim" to justify a case going to Court-martial.

A perfect example of this premise being true to life is the recent case of Major Kit Martin at Ft. Campbell, Kentucky.  MAJ Martin thought that he was married to a woman named Joan Harmon.  It turns out that MAJ Martin was not technically married to her because unbeknownst to him on the date of his marriage to her, she had not divorced her husband.  MAJ Martin later found out Joan was a bigamist when he filed for divorce due to her adultery, notwithstanding her threats to ruin his career if he divorced her.  She ultimately was charged with bigamy and pleaded guilty with a deferred conviction in Kentucky.

The first volley Mrs. Harmon fired to make good on her threat was to falsely accuse MAJ Martin of espionage.  She and her alleged lover, Calvin Phillip, presented a laptop with classified information on it to the FBI and alleged that MAJ Martin was a spy.  MAJ Martin passed a polygraph regarding this issue by Army Counterintelligence, but his Commander MG Mark Stammer attempted to impose nonjudicial punishment against MAJ Martin.  When MAJ Martin demanded trial by court-martial because he did not trust MG Stammer a.k.a. "The Hammer" to be unbiased, that is when Army prosecutors started looking for collateral misconduct.

So, it has been reported that the Army approached Ms. Harmon who was locked and loaded for her second volley and asked her if MAJ Martin ever sexually assaulted her or her kids.  Mind you, neither this woman nor her children had ever reported any kind of abuse whatsoever.  Yet, MAJ Martin was charged with sexual assault against his wife, sexual assault against her children who he had supported as his own, even though they were not his, and physical abuse.  A witness testified that she heard the military prosecutors at a preliminary hearing state that Ms. Harmon was not credible, but they could use the charges as leverage and could dismiss them before the trial once it got referred to a Court-martial.  In other words, it appears based on the witness's testimony that the prosecutors knew that her allegations that she was sexual assaulted by MAJ Martin were bogus, but they were going to use the bogus charges to shore up a weak espionage case, for which Harmon was also connected.  And, true to their word, those prosecutors dismissed the sexual assault charges involving Joan Harmon on the first day of the court-martial.

Ultimately, MAJ Martin was acquitted of sexual assault against the kids, but he was convicted of simple battery and mishandling classified information and was sentenced to 90 days of confinement and a dismissal.  I guess this is to what Secretary Carter refers when he says that through charging collateral misconduct in the military, Servicemembers can still be held accountable for collateral misconduct in the event they are acquitted of sexual assault.

So, at least the Secretary of Defense admits that military prosecutors take no issue at finding collateral alleged misconduct to shore up a weak sexual assault case.  But, I wonder if Secretary Carter understands that military prosecutors are shoring up weak non-sexual assault cases with bogus sexual assault charges.  Because the strategy is becoming just as common in the military to falsely accuse heroes like MAJ Martin of rape to get them out of the military, as the strategy of the medical profession in the 1600's when they falsely accused midwives of being witches to get them out of the baby birthing business.