January 22 Memo from Senator Claire McCaskill on Naval Academy Scandal
On January 22, 2014, the office of Senator Claire McCaskill (D-MO) sent out the following memo to members of the media, regarding the ongoing scandal at the United States Naval Academy:
MEMO
The U.S. Naval Academy sexual assault case—3 key facts
A case study in the importance of commanders’ roles in curbing sexual assaults in the military
In a highly publicized sexual assault case at the U.S. Naval Academy, charges against a second former Navy football player were recently dismissed at the urging of prosecutors, after investigators failed to read the suspect his Miranda rights before questioning him.
This represents the most recent setback in a case that illustrates clearly the importance of commanders to the fight to curb sexual assaults in the military—and highlights the risks associated with a proposal advocated by Senator Kirsten Gillibrand.
Three key facts:
1. This case is only moving forward because the commander had the ability to override the advice of legal counsel and prosecutors, and convene a court martial. Under the Gillibrand alternative, the commander would not have the authority to move a case forward, meaning this case would never have even reached a court martial.
2. While some supporters of the Gillibrand alternative have contended that “[p]rosecutors – not the Superintendent of a university – should be making the calls on who receives immunity, who is prosecuted, and what charges should be brought,” the fact is that it was prosecutors in this case—who had access to the materials presented at the pre-trial Article 32 hearing—who recommended that the Superintendent dismiss the charges.
3. Attempts by some to attach mistakes made by independent, professional investigators in the Naval Academy case to the senior level commander with General Court Martial convening authority in this case cannot be supported by the facts. These very same investigators would carry out the same work under the alternative system advocated by Senator Gillibrand—removing commanders from their senior roles in convening a General Court Martial. Errors by independent investigators unfortunately occasionally occur in both the civilian and military system, and attributing such errors to those who determine whether the case goes to trial cannot be supported by the facts.
Conclusion:
This case underscores the importance of retaining a role for commanders in the fight to curb sexual assaults in the military—and highlights the risks associated with the Gillibrand alternative.
Further, the egregious circumstances surrounding the pre-trial Article 32 process in this case helped propel dozens of historic legislative reforms recently signed into law — including provisions which amended Article 32 of the Uniform Code of Military Justice to prevent abusive treatment of sexual assault survivors in a pre-trial setting. Those historic reforms—including stripping military commanders of their ability to overturn jury convictions, requiring civilian review if a commander declines to prosecute a case, assigning victims their own independent legal counsel to protect their rights, mandating dishonorable discharge for anyone convicted of sexual assault, criminalizing retaliation against victims who report, and eliminating the statute of limitations in these cases—are already being implemented to protect and empower victims, boost prosecutions of predators, and hold commanders accountable.
