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Avatar of GI KoreaBy on December 20th, 2013 at 8:30 pm

Defense Spending Bills Strips Commanders from Overturning Sexual Assault Convictions

» by in: US Military

Here is something that was included in the recently passed defense spending bill:

The massive overhaul of the military justice system that many advocates wanted isn’t in the final legislation, but the bill does include a host of new provisions designed to protect military sex assault victims. Among them: removing commanders ability to overturn jury convictions, requiring a dishonorable discharge for sex assault offenders and more legal assistance for victims.  [Stars & Stripes]

The Stars & Stripes is showing either their bias or the ineptitude on this issue because the military does not have juries, it has court martial panels.  A court martial panel is very different from a jury and the term should not be used interchangeably because it will cause people unfamiliar with the military justice system to equate it with the civilian justice system.  In the federal jury system there are 12 people who are peers to the accused who have to vote unanimously to find someone guilty of a crime.  This is what most people think of when they think of a jury.  In a court martial panel there are 5 people who are not peers, usually higher ranking officers who just have to get a majority vote to convict.   This is why senior commanders have the responsibility to review cases to make sure that servicemembers are not being falsely convicted by a system that does not have the amount of protections in it that the civilian court system has.

With that all said removing the ability for commanders to overturn court martial panel decisions is probably not that big a deal because it very rarely ever happened and it is career suicide for a general officer to overturn such convictions now.  So servicemembers who are convicted now by a court martial with little to no evidence will just have to sit in jail and wait for the US Court of Appeals for the Armed Forces to review their cases and if warranted overturn them instead which has happened to a number of people already.  So really the bill doesn’t change a whole lot for the military, but allows Congress to show they are doing something.

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43
  • Larry Anderson
    8:55 pm on December 20th, 2013 1

    maybe the commander in chief will intervene in such cases as he has shown his propensity to do so in other recent cases, to pardon or over turn the courts. Surely though no innocent could be mis judged in todays over sensitized dramatation of accusations of such Sexual inproprieties. and that will certainly include Gay and Lesbian issues as soon as someone dares make an unkind remark to insult one of these protected members of society!

  • Louis Dechert
    9:34 pm on December 20th, 2013 2

    Bad legislation remains worse than no legislation at all.

    GI’s analysis continues to be right on target on this mess.

    Suggest that if conviction is Dishonorable Discharge for the accused, then acquittal by CM should mean DD for the accuser.

    (You are right.”Neber hoppen, GI.”)

  • Liz
    6:35 am on December 21st, 2013 3

    I think they could this to the USSC, and it shouldn’t pass for reasons GI Korea has mentioned numerous times.

    Commander oversight is required as a safeguard measure to protect the rights of soldiers due to the inherent Constitutional inequities between military and civilian trials. And they’re trying to exclude this oversight for one class of accused only.

  • Louis Dechert
    10:17 am on December 21st, 2013 4

    Absolutely correct!Doesn’t make any difference to the mush posing as leaders in the JCS or to the blathers in the Senate and House Armed Services committees.

  • Fanwarrior
    10:18 am on December 21st, 2013 5

    I don’t think you have any right to call someone out on “their” bias..

  • Liz
    11:40 am on December 21st, 2013 6

    #5: Free country still, init?

    Perhaps you can explain why a civilian charged with a crime should be afforded more Constitutional protections than a service member charged with the same crime?

  • Bob
    12:04 pm on December 21st, 2013 7

    so I’m wondering. You have all these gay and lesbian “rights” now in the military. Does that mean that all of the other laws, like adultery among married hetrosexual couples are deleted now also or what is the deal?
    What about “fraternization”? Is it NOW okay to have “straight sex” with a member of the opposite sex if they are willing or what?

  • Louis Dechert
    1:03 pm on December 21st, 2013 8

    #7, Bob: No way. The permitted by the Supreme Ruler, USA is androgynous members based of LGBT dictates (hereinafter, “degenerates”). And you can bet that the USCMJ still pertains to every non-degenerate (hereinafter, “straight”)serviceman or woman.

    Being stomped all over by the Senate (NOT THE HOUSE,yet), DOD, JCS, and Supreme Ruler,per his command influence pronouncement 12.20.13, are the protections to the accused in every military trial, as pointed out by GI Korea and “Liz” again and again.

    Judging by performances this past year, the Supreme Ruler intends in this matter to ultimately be fair , Liz: EVERYONE AMERICAN, military or civilian, will lose their judicial protections–already made a good start on this aim.

    LTD

  • Joe
    1:37 pm on December 21st, 2013 9

    I’m just waiting for the accusation of: I never consented to anal sex last night as I was totally drunk. All I know is I woke up this morning with my butt hurting like a mf’er, lol.

  • Fanwarrior
    5:46 pm on December 21st, 2013 10

    #6 it is, init? You see the hypocrisy here.. (well you probably don’t)
    GI Korea whose bias is like a giant blinking neon sign, with sound takes issue with someone showing their bias.
    So I point out that’s wrong,
    you then seem to take issue with the fact that i pointed that out, by pointing it out yourself.

    If you feel it’s such a free country you shouldn’t be taking any issue with me saying that, and you should be taking issue with him calling them out. It is a free country after all init?

  • Liz
    6:26 pm on December 21st, 2013 11

    #10:
    Blog-a website containing a writer’s or group of writers’ own experiences, observations, opinions, etc.

    By contrast, a news source is supposed to present fact, not opinion. Exception the op ed pages and this was an actual article. If the Stars and Stripes wants to be taken seriously as a legitimate news source (especially in a free country) it should stick to objectivity. So this blog is correct to call them out on it, and…being a blog and all that, this is not an inconsistency.

  • RockMarne
    8:45 pm on December 21st, 2013 12

    Doesn’t go far enough. Congress needs to take the commanders out of the process for trying sexual assault offenses. We have been hearing since Tailhook that the Department is going to fix it and it has failed miserably. Give an independent office to try these cases a chance and see if things improve. We can’t wait another two decades for the commanders to fix this. They won’t.

  • ChickenHead
    8:59 pm on December 21st, 2013 13

    If they put as much effort chasing down obvious fraud, waste, and abuse as they put into fretting over coerced alcohol-blurred accusations of suspect cases of some kind of possible sexual contact, everybody could drive a gold-plated tank.

  • Fanwarrior
    11:23 pm on December 21st, 2013 14

    It’s an inconsistency since my comment is a personal opinion… if he can have his, why can’t I have mine?

    and using a simplified term like “jury” hardly implies some bias anyway

  • Liz
    5:32 am on December 22nd, 2013 15

    #14: I didn’t suggest that anyone had no right to speak. That was you.
    I actually requested that you elaborate on your opinion.

  • ChickenHead
    5:52 am on December 22nd, 2013 16

    “Defense Spending Bills Strips Commanders from Overturning Sexual Assault Convictions”

    “Strips Commanders”?

    Phrasing, people… phrasing.

  • Liz
    6:06 am on December 22nd, 2013 17

    ““Strips Commanders”? Phrasing, people… phrasing.”

    I kind of like it. ;-)

  • Avatar of GI KoreaGI Korea
    8:04 am on December 22nd, 2013 18

    @5- Please explain how I am bias? I posted facts in regards to how the US military does not have juries.
    How come the S&S does not inform their readers of this?

    I understand facts quit mattering on this issue long ago but I will continue to post facts because maybe one day they will matter again on this issue.

  • Avatar of GI KoreaGI Korea
    8:07 am on December 22nd, 2013 19

    @6- Liz I find it interesting that no one has responded to why civilians should have more Constitutional protections than servicemembers.

  • Avatar of GI KoreaGI Korea
    8:13 am on December 22nd, 2013 20

    @12- Commanders are already over prosecuting for sexual assault.

    http://rokdrop.com/2013/05/20/how-the-special-interests-are-sensationalizing-the-military-sexual-assault-issue-and-i-have-the-facts-to-prove-it/

    Do you just want everyone accused of sexual assault to all be prosecuted regardless of the evidence?

  • tbonetylr
    8:32 am on December 22nd, 2013 21

    @16,
    Let me help explain. You make it sound like the civilian court jury system has a bunch of the suspect’s friends on the jury while a court martial panel/jury somehow doesn’t.

    A higher ranking official is a “peer” just like a lower ranking official or one who is equally ranked. They’re all “peers”.

    There isn’t anything special about a “peer”.

    A “peer” on civilian court is simply a law abiding citizen. If I were a construction worker I can’t get a bunch of other construction workers to sit on the jury.
    On the other hand, a court martial panel has servicemembers who are all in the military. That sounds like more “Jeong” to me.

  • tbonetylr
    8:50 am on December 22nd, 2013 22

    @19,
    “Constitutional rights to presumption of innocence”

    Have you shown us somewhere the military/civilian prosecution conviction rates or percentages?

  • ChickenHead
    9:27 am on December 22nd, 2013 23

    GI Korea,

    The decision of a civilian member of a jury has no effect on his career.

    If a member of a court martial panel finds the just decision and the politically-correct decision are not the same, might it affect his career to do what is right rather than what pleases the whims of current politics?

  • Liz
    9:37 am on December 22nd, 2013 24

    #23. I’m not GI Korea but the answer is yes.

    My husband was on a Courts Martial board (he was an Lt at the time) regarding a rape case and witnessed firsthand how political correctness can soil the process. As, too, can chain of command…the officers serving on that board often differ in rank and it’s more in the Captain’s interest to defer to the Lt Colonel’s decision.

    There are a lot of incentives to err on the side of prosecution. Furthermore, this decision doesn’t have to be unanimous….so a hypothetical Captain falling on his sword in the interest of justice might only harm himself and have little of no impact on the verdict anyway. It has a kind of game theory dynamic.

  • ChickenHead
    9:43 am on December 22nd, 2013 25

    As I suspected. Thank you Liz for the clear explanation.

    Tbone, does that clear up the difference in the processes and the difference in what “peer” means in the two cases?

    I’m guessing you were never in the military.

  • tbonetylr
    10:56 am on December 22nd, 2013 26

    @25,
    “Tbone, does that clear up the difference in the processes and the difference in what “peer” means in the two cases?”

    If there is such a difference then why keep comparing?

    And in S. Korea the “constitutional right to presumption of innocence” also is given to citizens in civilian courts which U.S. servicemembers sometimes attend. But I’d bet the conviction rate in the civilian court(90+ percent) is much higher than the military court. So much for the “Constitutional rights to presumption of innocence” unless someone wants to show that military court has a higher conviction rate than 90%.

    In some of the 100+ countries the U.S. insists on keeping its military you don’t get “Constitutional rights to presumption of innocence”.

  • ChickenHead
    11:18 am on December 22nd, 2013 27

    It is winter, Tbone, and the windows are all shut tightly. Please consult the caution label concering glue use in enclosed spaces.

    “If there is such a difference then why keep comparing?”

    What exactly are you asking? What are you saying? What could possibly be the point of that statement in relationship to the discussion?

    As for the rest… uh… huh? Korea? Korean constitution? What page are we on again?

    Tbone, if you have a question, a comment, or an opinion, feel free to share it… but kindly interact with the comments of other rather than the confused voices in your head.

  • Louis Dechert
    11:39 am on December 22nd, 2013 28

    #16,17: WATCH OUT! Did those commanders consent to stripping? Otherwise it is MSA (Military Sexual Assault) even up to the Supreme Ruler where in normal times it was called command influence.

  • Avatar of GI KoreaGI Korea
    12:05 pm on December 22nd, 2013 29

    Liz, still none of the detractors have addressed your question.

    If a court martial panel was composed of peers then if PFC Tentpeg was accused of sexual assault than he should be able to have lower enlisted on the panel. If the panel was composed of a mix of soldiers, NCOs, and officers than that would be a true panel composed of peers.

  • Glans
    12:57 pm on December 22nd, 2013 30

    What if there were one or two civilians on a court-martial panel?

  • tbonetylr
    4:06 pm on December 22nd, 2013 31

    @19
    “Liz I find it interesting that no one has responded to why civilians should have more Constitutional protections than servicemembers.”

    Obviousely, you haven’t shown us the numbers/conviction rates/percentages to even come close for a legit argument. You show us one or two cases and want me to agree that military servicemembers especially aren’t given their constitutional protections any more/less than a civilian.

    Until then why would you expect anyone to care about the poor military man who allegedly rapes a woman and that suspect’s “Constitutional rights to presumption of innocence”?

    Show us the conviction rate numbers/percentages :?:

  • tbonetylr
    4:23 pm on December 22nd, 2013 32

    If you can show me that the American military has a higher than 93% conviction rate then maybe I’ll have sympathy for the poor military servicemember or worry about his/her “Constitutional rights to presumption of innocence”.

    http://en.wikipedia.org/wiki/Conviction_rate
    The conviction rate of a prosecutor or government is the number of convictions divided by the number of criminal cases brought. In the U.S. federal court system, the conviction rose from approximately 75 percent to approximately 85% between 1972 and 1992.[2] For 2011, the US Department of Justice reported a 93% conviction rate.[3] The conviction rate is also high in U.S. state courts. Coughlan writes, “In recent years, the conviction rate has averaged approximately 84% in Texas, 82% in California, 72% in New York, 67% in North Carolina, and 59% in Florida.”[4]

  • Avatar of GI KoreaGI Korea
    5:31 pm on December 22nd, 2013 33

    @31- Your argument makes no sense so it appears you are just trolling. You could not be stupid enough to not realize that a 5 person panel not composed of your peers that only needs a majority vote to convict does not equal the protections provided by the federal jury system.

  • jim
    9:09 pm on December 22nd, 2013 34

    @19 i think the question should be worded oppositely: “why do servicemembers have fewer constitutional protections than civilians?”

    the reason might lie in the unique nature of the military, and good order and discipline being vital to the ranks, and expediency being crucial (especially in time of war). commanders fill the role of a grand jury (notice the exception in the 5th amendment) simply by virtue of being in command, and weighing troop morale against his own time and perceived execution of justice. at any rate, military trials are very similar to civilian trials. the servicemember is innocent until proven guilty (burden of proof again on the prosecution). panels for capital crimes must be unanimous. enlisted can also request a panel of at least 1/3 enlisted (more “peer”-like). and accused actually have to consent to court-martial in most cases (summary). the ucmj is by no means a perfect system, but i’d say it still affords the servicemember plenty of protection.

    the convening authority’s ability to overturn verdicts is a bit like sending a case back to a one-man grand jury to see if the objectives were met. most of the time, he rubber-stamps the verdicts. but having that “veto” authority, if you will, is necessary to good order and consistency in court-martial deliberation. (it’s a small stretch, but consider the requirement for a battalion csm to review all nco evaluations in his unit, although he is in no one’s chain of command.) since it’s usually a general and high-vis, questionable administration of the courts-martial process is a great way to end one’s career.

    at any rate, to me, the questionable activity is the convening authority hand-picking the panel itself, not the veto authority.

  • tbonetylr
    11:53 pm on December 22nd, 2013 35

    @33,
    You still haven’t shown us the conviction rates? Why is that? Because you and Liz specifically called out anyone in a backwoods way to counter the…Oh me oh my soldiers don’t have “Constitutional rights to presumption of innocence”

    Then when someone does, you call them stupid and a troll. :roll: all while refusing to show the conviction rates/percentages.

    I’d hate to see your meaning of a “troll”.

    News flash, citizens sometimes aren’t given their “Constitutional rights to presumption of innocence” either. :shock:

    Until you show me how the military conviction rates are higher then I won’t believe what you want. And if you don’t see a connection between “Constitutional rights to presumption of innocence” and conviction rates then it’s obvious you don’t have an open mind.

    Now, let’s get to the book meaning of “peer,” not just your own(whatever that is?) Sorry but each of the 5 person militarypanel does count as a “peer”. Notice (3) below that there can be different ranks. So, YOUR ARGUMENT MAKES NO SENSE :!:

    1: one that is of equal standing with another : equal; especially : one belonging to the same societal group especially based on age, grade, or status
    2archaic : companion
    3a : a member of one of the five ranks (as duke, marquess, earl, viscount, or baron) of the British peerage
    b : noble 1

  • tbonetylr
    12:20 am on December 23rd, 2013 36

    Just because no lower ranking “peers” are or aren’t on the panel doesn’t take away from the “peers” sitting on the panel. And when Liz(#24) tried to explain that the “peers” come to their decisions based on this(“political correctness”) or that(“justice”) reason also doesn’t take away from what they are(which IS “peers”).

  • tbonetylr
    12:23 am on December 23rd, 2013 37

    Humor me, if they aren’t “peers” what are they? :lol:

  • tbonetylr
    1:17 am on December 23rd, 2013 38

    Let’s for a moment say you got what you’re calling for which is lower ranking servicemembers on the panel.

    What do you think that would be like? Do you think he/she would disagree with the higher ranking servicemembers? And if so, be called a stupid troll? Oh no, not only that. I say he/she would get reamed. What do you want, more criminal cases before the panel? How dare ye who disagrees with a higher ranking servicemember, especially on a panel.

  • tbonetylr
    1:37 am on December 23rd, 2013 39

    @30,
    Don’t expect to get an answer.

  • ChickenHead
    2:38 am on December 23rd, 2013 40

    “News flash, citizens sometimes aren’t given their “Constitutional rights to presumption of innocence” either.”

    That can happen with dirty cops and crooked prosecutors… but if it is found out, civilians generally have recourse. With military courts, that is the default situation.

    “Until you show me how the military conviction rates are higher then I won’t believe what you want. ”

    Here is a link to the information you are asking for. You will need to go through a proxy if you want to access it from outside the USA.

    http://www.armfor.uscourts.gov/newcaaf/ann_reports.htm

    I only looked at the Army for 2012…

    90.48% conviction rate for General
    95.48% conviction rate for BCD Special
    97.89% conviction rate for Summary

    For civilian courts…

    “For 2011, the US Department of Justice reported a 93% conviction rate (federal court). The conviction rate is also high in U.S. state courts. Coughlan writes, “In recent years, the conviction rate has averaged approximately 84% in Texas, 82% in California, 72% in New York, 67% in North Carolina, and 59% in Florida.”"

    Don’t bug people for answers to question you don’t already know the answer to… or you will look dumb(er).

  • setnaffa
    8:02 am on December 23rd, 2013 41

    Tbone, if he really is serious about officers and enlisted being peers, must never have been in the service and thus bases his false ideas about the military from Hollywood (or the folks who run HuffPo or DailyKos).

    Peer:

    –a person who belongs to the same age group or social group as someone else
    –one that is of equal standing with another : equal; especially: one belonging to the same societal group especially based on age, grade, or status

    Officers and Enlisted service members have traditionally been restricted from “fraternizing”; and they are most decidedly NOT members of the same societal group while in active service.

    And the UCMJ is most decidedly NOT the same as civilian law. The Supreme Court has even upheld a person being convicted twice for the same offense as long as one was under the UCMJ and the other under civilian law. http://www.hqmc.marines.mil/Portals/135/MJFACTSHTS1.html

    I really wish tbone could learn to google. And please forgive me for being straight up here: no service member gives a rat’s Christmas about his sympathy. They’ve seen it displayed by many of his type all their lives.

  • 2ID Doc
    8:34 pm on December 24th, 2013 42

    #32 TBone your link is accurate but the story behind is missing. I have 2 family members who work for the federal government Both work for the US Marshal Service. Speaking to them about criminal justice, until the prosecuting attorney has plenty of hard evidence for a conviction, they will not execute a warrant and arrest then indict a suspect. Often they will observe someone’s movements & actions while waiting for evidence. Part of that “conviction” rate is also settlements where they will allow a suspect to plead guilty to a lesser charge, just to secure the conviction and avoid a 7% chance of a not guilty verdict, since there is no parole in the federal system.

  • ChickenHead
    9:14 pm on December 24th, 2013 43

    The statistics don’t back up Tbone’s argument. He won’t be back to comment…

    …and, if he does come back, I have the information ready to counter whatever angle he might attack from.

    Of course he will be back to spout off on this topic… but it will be next time… on a new posting… where we will have to aruge all this from scratch… leaving it, once again, unresolved.

 

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