Military sexual assault proceedings: Enlisted hammered, officers not so much

By Tony Diaz

As the guilty finding of an Army General makes the headlines, the subsequent sentencing further illustrates the vast difference between punishments meted out to the enlisted men, and those awarded to the college educated officers. The Los Angeles Times reported on June 20, 2014 of the court martial of Brigadier General Jeffery A. Sinclair (pay grade O-7), who was facing charges of sexual misconduct involving lower ranking officers and a slew of lesser offenses. However, recent judicial proceedings against enlisted men resulted in very different sentences.

The Army one-star plead guilty at his Fort Bragg, NC court-martial of adultery, improper relationships with female officers, conduct unbecoming an officer, possessing pornography, and misusing a government charge card. If found guilty at a court-martial proper, Sinclair could have faced the remainder of his life in prison. However, his guilty plea resulted in reduction in two ranks, a $20,000 fine, and an Honorable Discharge. Sinclair will retire with all the retirement pay and benefits of a Lieutenant Colonel (O-5).

The disgraced officer could have faced even more severe penalties, but his team of lawyers successfully sealed a lawyer's bargain with the Army prosecutor. As reported, "under terms of a plea deal, the government dropped charges that Sinclair threatened to kill his lover and her family if she reported the affair; forced her to perform oral sex; and engaged in 'open and notorious' sex with the captain."

San Diego 6 News also reported on June 5, 2014, that Navy Captain (O-6) Gregory McWherter was relieved of duties as the Executive Officer (second in charge) of the sprawling Naval Base Coronado across the bay from San Diego. McWherter was found guilty of failing to stop "obvious and repeated instances of sexual harassment" while the Commanding Officer of the Navy's famed Blue Angels precision flight team at various times from 2008 through 2012.

After being found guilty at Admiral's Mast (one step lower than a Summary Court Martial), the Navy Captain was issued a non-judicial punitive letter of reprimand which effectively ended his career. He will retire honorably with all pay and benefits of his current rank.

WRAL of Raleigh, NC reported on June 13, 2014 of Army Captain (O-3) Richard Camacho of the 82nd Airborne Division who was found guilty of 11 of the 18 charges levied against him, to include "kidnapping, sexually assaulting and beating a female officer." Camacho was "sentenced to two years in a military prison and will receive a dishonorable discharge after his release."

Two other sensationalist military trials have also made it into the headlines. These two however, involved enlisted men and had much different conclusions.

The Huffington Post made note on July 21, 2012 of Air Force Staff Sergeant (E-5) Luis Walker who was found guilty by a Lackland (Texas) Air Force Base court-martial of rape and sexual assault. Walker was sentenced to a 20-year stint at Fort Leavenworth. According to the UCMJ (Uniform Code of Military Justice), a sentence of that length all but guarantees a reduction in rank to E-1 and forfeiture of all pay and allowances.

In what many consider by many to be the most egregious case of an officer selling out an enlisted man in generations would be the long and twisted legal saga of Marine Corps Staff Sergeant (E-6) Stephen Howell, as reported by the Associated Press via the Topeka (Kansas) Capital-Journal on June 5, 2014. Howell was assigned to Recruiting Duty in the Lexington, Kentucky area where he admitted to a sexual relationship with a woman who wasn't his wife.

In what ended up being a case of "he said, she said," the unidentified woman now claims rape, Howell maintained the affair was consensual.

Nonetheless, the court-martial board at the storied Parris Island Marine Corps Recruit Depot in South Carolina found the Leatherneck guilty of "rape, forcible sodomy, adultery and other charges." With the guilty verdict also came the inevitable reduction in rank to pay grade E-1, forfeiture of all pay and allowances, and a 19-year hitch in the brig.

But late last month, the U.S. Navy-Marine Corps Court of Criminal Appeals overturned SSgt. Howell's conviction due to none other than the Commandant of the Marine Corps General James Amos "illegally influenced a jury." Navy Captain and Chief Judge Moira Modzelewski of the Appeals Board wrote of General Amos' conduct prior to SSgt. Howell's proceedings even beginning, "An objective, disinterested observer, knowing that potential court-martial members heard this very personal appeal ... to 'fix' the sexual assault problem, would harbor significant doubts about the fairness of a sexual assault trial held shortly thereafter in June."

Before the court-martial convened, Amos' "push against sexual assault" interference was tantamount to "unlawful command influence." In the Commandant's 2012 remarks, he said plainly stated "court-martial panels were becoming soft on such cases and urged tough actions." Amos continued  with "'the fact of the matter is, 80 percent of the (allegations) are legitimate sexual assault' rather than 'buyer's remorse.'"

A former Army JAG Officer, Charles Rose is currently a professor at Stetson University Law School in Gulfport, Florida, believes "the ruling could become problematic for prosecutors in other cases involving Marines. But as long as the comments are associated strictly with the Marines, they likely won't cause problems for the Army, Navy or Air Force."  

In what could end up being more than slightly problematic for Barack Obama, the law professor added, "Only if defense attorneys can find a way to attribute the remarks to the Commander-in-Chief 'or his agents' would Amos' comments potentially become an issue in other branches of the service."

Tony Diaz