Can military try sexual assault cases? Critics decry general's plea deal.

Advocacy groups say the plea deal, in which sexual assault charges were dropped against Brig. Gen. Jeffrey Sinclair, shows why military commanders should not have authority over such cases. 

Johnny Horne/The Fayetteville Observer/AP
Brig. Gen. Jeffrey Sinclair (l.) leaves the Fort Bragg courthouse, Monday, March 17, 2014 with his defense attorney Richard Scheff. Sinclair, who admitted to improper relationships with three subordinates appeared to choke up as he told a judge that he'd failed the female captain who had leveled the most serious accusations against him.

It was shaping up to be one of the most closely watched military trials in recent history – and only the third court martial that the US Army had conducted of a general in more than half a century.

It was also widely viewed as a litmus test for the Pentagon’s handling of sexual assault cases.

And so when the Army announced it was dropping sexual assault charges against Brig. Gen. Jeffrey Sinclair in a plea-bargain deal, it led many advocacy groups in particular to question whether the military is capable of fairly prosecuting such crimes.

While he denied the assault, Brig. Gen. Sinclair admitted to having a long-standing affair with a soldier under his command, which under military law is considered a grave abuse of power.

In exchange for dropping the sexual assault charges, which could have carried with them a sentence in military prison, Sinclair pleaded guilty to conducting a three-year affair with the captain and to pressuring other junior soldiers into texting him nude photos of themselves.

He also admitted to continuing to contact the captain after being ordered not to by his superior officer, and to improperly using a government credit card while traveling to visit his mistress.

Sinclair said he had never physically harmed her intentionally, though he added that he did detain her in a hotel room once because he was worried she would do something in the lobby that might draw attention to the affair.

“I failed her as a leader and as a mentor and caused harm to her emotional state,” he told the court Monday, speaking of the captain with whom he had conducted the affair.

Instead of likely jail time and a requirement to register as a sex offender had he been found guilty of sexual assault, his sentence could include no jail time and a reduced rank, which might mean less money in pension benefits.

“I hope he is permitted to retire at a reduced rank and can go home to his family,” his attorney told reporters before the sentencing hearing for Sinclair, who is married, began on Monday.

But by Monday afternoon, the captain who had accused Sinclair of sexual assault was responding to news of the plea-bargain deal through her lawyers, who include a retired rear admiral and a former Air Force judge advocate.

“Gen. Sinclair has just pleaded guilty to multiple charges that clearly undermine his integrity and honesty for at least the last five years of his career,” Rear Admiral Jamie Barnett, who represented the captain pro bono, said in a statement. “It is ludicrous for his attorneys to claim, completely without support, that the charges of sexual assault were false.” 

The simple fact that Sinclair was her superior was an argument for prosecution, Mr. Barnett added. “The military in general must learn that when a superior officer has authority over someone towards whom he is making improper advances, it is not a consensual affair. It is sexual abuse and a victimization of the junior person.” 

The general also repeatedly refused the captain’s requests to be transferred, ordering her to stay under his command and, in so doing, further victimized her and sabotaged her career, the captain’s lawyers argue, adding that by abusing his power toward a subordinate, Sinclair also “did great harm to his unit’s good order and discipline, morale, and cohesion.” 

The case was full of twists and turns. Even after a three-star general overseeing proceedings rejected Sinclair’s offer to plead guilty to lesser charges, the officer in charge of the court-martial, Col. James Pohl, stopped the trial and urged lawyers to come to a plea agreement.

There were questions about whether the captain had been truthful and concern, too, that in trying to prove its commitment to prosecuting sexual assault, that the Army had been too robust in its prosecution of Sinclair and exerted what is known as “undue command influence.” 

Advocacy groups say that the outcome of the trial is another reason why military commanders should not have the authority to decide whether the prosecution of sexual assault cases should move forward. Such authority would have been stripped from commanders under a bill sponsored by Sen. Kirsten Gillibrand (D) of New York, but it was filibustered and prevented from coming to a vote earlier this month. 

“The Sinclair case is one more very stark example of why independent military prosecutors should be in charge of deciding whether to go forward with cases,” Nancy Parish, president of the Protect Our Defenders advocacy group, said in a statement.

“It has been well-documented and long known within the military that Gen. Sinclair conducted himself in outrageous and inappropriate – even unlawful – ways.”

Having commanders involved in sexual assault trials is a double-edged sword, argues Greg Jacob, policy director for Service Women’s Action Network and a former Marine. 

“Cases may not go forward when they should because a commander doesn’t want to, or there may be over-zealous prosecutions because the commander wants to prove a point. This is why there should be unbiased prosecutors,” he adds. “In both cases, either the victim doesn’t receive justice or the accused has rights that are trampled all over, just sort of on the whim of the commander.” 

The defense is expected to call two dozen witnesses to testify to Sinclair’s character during the sentencing hearing.

A bill that cleared the Senate last week bans the use of the “good soldier” defense in sexual assault cases, arguing that perpetrators can commit crimes while still being charming and good at their jobs. 

The judge in charge of the case is expected to announce Sinclair’s sentence later this week.

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