When President Barack Obama said that people who commit sexual assault in the military should be “prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged” in a White House speech in May, he might not have realized how those individuals charged with assault would begin to argue that they can’t get a fair trial.
Defense attorneys and judges in at least a dozen sexual assault cases are now saying the president used “unlawful command influence” as commander and chief, according to the New York Times. By “ordering” a rather specific outcome, Obama’s remarks could be regarded by jurors as an attempt to influence a court-martial.
“The president was absolutely not trying to be prescriptive,” said Kathryn Ruemmler, the White House counsel, told The Times. “He was listing a range of examples of how offenders could be held accountable. The president expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment.”
The White House claimed the president wasn’t using “dishonorable discharge” in its textbook sense, but rather as a generalized way of referring to getting a person out of the military
“There is a point at which the statements of civilian officials could be so specifically directed, or so inflammatory, that a military defendant is deprived of due process,” said Diane H. Mazur, professor emeritus at the University of Florida Levin College of Law. “But I don’t think the president’s remarks come close to that level.”
While it might not stick, defense lawyers can’t help but try.
“Because the president is the commander in chief, it’s going to come up in basically every imaginable context in sexual assault cases,” Eugene R. Fidell, a teacher of military justice at Yale Law School, told The Times.
This year a Pentagon reports showed 26,000 men and women in the military were sexually assaulted in 2012. Just over 3,000 of the incidents were actually reported.
Could some of these accused assailants actually go free?