WASHINGTON — Military judges on Tuesday expressed concern about whether a commander’s tough talk against sexual assault could tilt the scales of justice.
Even as members of Congress offer competing plans to combat what some call an “epidemic,” a key military appellate court must determine whether the nation’s top Marine Corps officer went rhetorically overboard in past speeches. The fate of one ex-sergeant formerly based in South Carolina is on the line right now, but the fates of other court-martialed Marines and those still facing prosecution might follow.
During an hourlong oral argument Tuesday, the U.S. Navy-Marine Corps Court of Criminal Appeals confronted the fallout from a series of speeches given last year by Marine Corps Commandant Gen. James Amos. Amos repeatedly demanded strict punishment for Marines charged with sexual assault, and he dismissed suggestions that many sexual assault allegations may be invalid.
“The commandant did make comments on sentences at court-martial. He did comment on specific punishments, and he said he thought Marines were being too soft on those convicted of sexual assault,” Judge Jeffrey A. Fischer said Tuesday. “Would not a reasonable member of the public call into question all of our courts-martial, hearing that?”
Lower-level military judges previously have concluded in other cases that the speeches by Amos created the appearance of unlawful command influence. The usual solution in such situations is to give the defense some extra leeway, like additional ability to get rid of potential jurors.
The hearing Tuesday in a crowded courtroom at the Washington Navy Yard, though, marked the first time Amos’ rhetoric has been considered by the top appeals court for the Navy and Marine Corps.
What the three-judge panel ultimately decides will shape the future prospects for former Sgt. Roger E. Easterly, who was convicted last year of assault and adultery for his actions at Marine Corps Air Station Beaufort, S.C. Easterly since has been released from the brig and is now a civilian living under the shadow of a bad conduct discharge. If he wins his appeal, the terms of his discharge might be adjusted.
More broadly, the appellate court’s eventual ruling will guide future Marine Corps courts-martial when charges such as rape, sexual assault or adultery arise.
“The commandant of the Marine Corps showed contempt for the legal rights of the accused,” Marine Corps Capt. David A. Peters, Easterly’s appellate attorney, said Tuesday, adding that “the commandant said he wanted punitive discharges for adultery, and he got that in this case.”
Lawmakers, too, are demanding stern action against military sexual assault, though the civilian response is still a work in progress, as the Senate has stalled for now on a defense bill that would include a number of new sexual assault provisions. A key showdown over whether to remove sexual assault cases from the military chain of command has been put off until December.
Last year, 3,374 military sexual assaults were reported to authorities, according to the Defense Department’s Sexual Assault Prevention and Response Office. Of these, about one-third were classified as “wrongful sexual contact,” 27 percent were classified as rape and 28 percent were classified as sexual assault.
Starting in April 2012, when military sexual assault was a topic heating up on Capitol Hill, Amos undertook the series of speeches called the “heritage brief.” Among other points, Amos dismissed notions that many sexual assault allegations amount to after-the-fact regret for a consensual act.
“I know fact from fiction,” Amos told his subordinates at Parris Island, S.C., in April 2012. “The fact of the matter is, 80 percent of these are legitimate sexual assault.”
Amos further demanded that the Marine Corps “get rid” of those who are “not acting right.” After the chief defense counsel of the Marine Corps raised alarms about the provocative comments, defense attorneys later learned, officials blocked further recording of the commandant’s talks and ordered the erasing of a recording of a speech made at Marine Corps Base Quantico in Virginia.
“The commandant of the Marine Corps is saying, ‘I don’t listen to my lawyers,’ ” Peters said.
Navy Lt. Cmdr. Brian C. Burgtorf, representing the government, countered that the commandant’s words “were not directed” at Easterly and did not affect his case.
“An informed member of the public would have no significant doubts about the (fairness) of the trial,” Burgtorf said.
According to court documents, Easterly was having an affair with the wife of a fellow Marine, who was deployed to Afghanistan. Following a night of heavy drinking in January 2012, investigators say, Easterly drove the wife home along with another woman. The other woman, who reported having “between 10 and 15 drinks,” reported falling asleep at the home. She then awoke with Easterly on top of her; she said, according to a government summary, that he was “having sex and biting her on the neck, the lip and down her arms.”
The court-martial panel, which included two enlisted men who had attended one of the heritage brief speeches by Amos, acquitted Easterly of rape and sexual assault but convicted him on the other charges.
The partial acquittal, several judges suggested Tuesday, could undercut claims of command influence.
“Wouldn’t a disinterested member of the public say, ‘Wow, maybe they didn’t really listen to the commandant?’ ” asked Chief Judge Moira Modzelewski.