Note

Overcoming Overcorrection: Towards Holistic Military Sexual Assault Reform

This Note brings a different perspective by analyzing the issue of military sexual assault from the often-ignored perspective of defendants, arguing that the military justice system, which once failed victims, is now failing the accused. Besides defense attorneys arguing on behalf of their clients, few have taken this position, and those who have discussed these issues have not provided a sustained discussion of potential reforms. Viewing this emotional issue from the perspective of a defendant is not intended to undermine, doubt, or discount victims or the larger problem of sexual assault in both the military and our broader society. Rather, the goal of this Note is to add a new perspective in the hope of spurring more durable, lasting, and balanced reforms. This Note synthesizes problems within the military justice system that, when considered in isolation, may seem insignificant compared to the broader problem of sexual assault. However, when considered in concert, the picture is clear: The military justice system remains deeply broken, but it is not beyond repair. As such, this Note then presents a series of reforms that would ensure a fairer, more stable military justice system for both victims and defendants.

This Note will proceed in four parts. Part I will serve as an overview of the military justice system. A familiarity with the unique features of the military justice system and the court-martial process is vital to understanding these issues. Part I will also analyze some of the procedural changes that have been made in response to the sexual assault epidemic. Part II will summarize the doctrine of unlawful command influence (“UCI”) and examine how it applies to sexual assault in the military. Part III will look more closely at the content of SAPR trainings, which all service members and civilian employees attend on a regular basis, and consider the potential unintended consequences of this training on the military justice system. Finally, Part IV will evaluate the reform proposals put forth by Senator Gillibrand and Senator McCaskill and offer an alternative model that would facilitate a system of justice that is fair to both victims and the accused by placing the disposition of traditional crimes in the hands of independent prosecutors while leaving military-specific crimes in the hands of commanders.

Who’s In and Who’s Out: Congressional Power Over Individuals Under the Indian Commerce Clause

For over two hundred years, Congress has enjoyed plenary power over Indian affairs under the Indian Commerce Clause. This Clause has allowed preferential treatment for Native Americans to bypass strict scrutiny despite the evolution of modern race law. But in late 2015, the Bureau of Indian Affairs (“BIA”) published new regulations requiring courts to follow a strict set of procedures that ensure Native American children will be placed with tribe-affiliated families. This sparked immediate backlash. Adoption agencies argue that the BIA’s new regulations impose undue burdens on Native American children because of their race. This litigation has profound implications for the continued existence of modern Indian law, which rests on the assumption that government regulations affecting Native Americans is a “political”—not “racial”—classification. So far, current scholarship has failed to foresee or respond to these equality-based attacks. 

This Note proposes a new response, and a new interpretation of Congress’s powers under the Indian Commerce Clause. It focuses on the word “Indian” in Article I to argue that the Constitution contains a latent ambiguity highlighted by the BIA’s rulemaking. It proposes that the term “Indian” refers to an individual’s political, social, and cultural connections rather than their ethnic heritage. This novel interpretation accords with historical practice, the evolution of judicial precedent, and intra-textual analysis of the Constitution. The effect of this interpretation is to recognize a previously unarticulated constitutional limit on Congress’s power to regulate individual Native Americans, granting the ultimate recognition of tribal citizenship to the eligible individual. 

 

Mature Minors, Medical Choice, and the Constitutional Right to Martyrdom

Since the mid-twentieth century, the U.S. Supreme Court has acted to preserve and define civil rights. When states fail to protect the rights of minority groups, the courts step in by creating constitutional safeguards for minorities, juveniles, and religious objectors. In the context of juvenile rights, the Supreme Court has consistently relied on scientific data to define the rights attributed to people under the age of majority. Since the greater psychological community has accepted that a minor’s cognitive abilities reach a state of maturity around age sixteen, the Supreme Court may be poised to clear up a century-old controversy regarding a minor’s right of self-determination. This Note explores whether a minor can exercise her First Amendment Free Exercise rights to make medical treatment choices.

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