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.
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