Who has jurisdiction in sex assault case: civilian or military court?
By NANCY MONTGOMERY | STARS AND STRIPES Published: May 8, 2013
Lt. Col. Jeffrey Krusinski could be prosecuted twice for the sexual assault he’s accused of: once by civilian authorities and again by the Air Force.
Krusinski was head of the Air Force’s Sexual Assault Prevention and Response Program until Monday when his arrest in an Arlington, Va., parking lot for allegedly groping a woman he did not know came to light. He is to be arraigned on Thursday by Arlington authorities on a charge of sexual battery. That’s a misdemeanor carrying a penalty of up to a year in jail and a fine.
Air Force officials requested that Arlington County prosecutors cede jurisdiction in the case to the Air Force for prosecution under military law.
But Arlington County Commonwealth’s attorney, Theo Stamos, has declined to transfer the case, according to reports.
“It never occurred to me to turn over the case to the military,” Stamos said, according to CNN.
“It’s our prosecution. He’s been charged. We have an arraignment set. Our victims’ services people have reached out to the victim,” she said, according to the Clarendon-Courthouse-Rosslyn Patch.
No information about the woman who accused Krusinski of grabbing her breasts and buttocks until she broke free and called police was available Wednesday.
Krusinski, 41, is the divorced father of two, according to court records, whose 14-year marriage ended in 2009. His ex-wife and children live in Ohio, according to the records. He lives in Arlington.
Civilian authorities and the military both have jurisdiction in cases in which servicemembers are accused of a crime that violates both military and state law, and those cases may be tried by a military court, a civilian court or, in theory, both. In practice, however, military and civilian prosecutors coordinate to decide which authority should prosecute, often as a matter of pre-determined agreements.
Some areas routinely transfer jurisdiction to the military; others do so only for certain offenses or on a case-by-case basis.
“Some locals gladly give it to us for a number of reasons: money, time, litigation risk, or they like to support the military,” according to a military lawyer who declined to be named because he was not authorized to speak to reporters. “Others rarely give it to us. Some don’t trust us to do the right thing. Some think our sentences are too weak. We see that especially in child porn cases.”
High-profile cases, which can showcase prosecutorial skills and enhance prestige, are also less likely to be turned over to the military.
Air Force policy is to always seek jurisdiction, officials said. In the Krusinski case, the Air Force would also hope to demonstrate it could be trusted to handle sexual assault cases, despite a growing national belief to the contrary.
Krusinski’s arrest — along with a mug shot Arlington police released of the officer’s cut and scratched face — was reported just hours before the release of a Defense Department report estimating that 26,000 servicemembers had been assaulted last year, up from 19,000 two years ago — and that few had reported it to the chain of command, citing privacy concerns and lack of confidence in the system.
The arrest, reportedly just days after Krusinski had himself undergone training about sexual assault victims, followed another Air Force lieutenant colonel’s sexual assault conviction and an Air Force general’s highly criticized decision to dismiss the case, free the officer from jail and reinstate him into the Air Force.
Those factors could cause Arlington County officials, as well as the alleged victim in the case, not to trust the Air Force to prosecute.
But the Air Force could prosecute Krusinski even if Arlington County does so first.
The Uniform Code of Military Justice — expected to undergo changes because of the recent scandals — is federal law. The “separate sovereigns doctrine” allows for states and the federal government to prosecute the same person twice for the same offense, without double jeopardy prohibitions.
Krusinski could, for instance, face court-martial for conduct unbecoming an officer and gentleman.
But in practice, “it’s very rarely done,” the military lawyer said.
According to policy, the Air Force Secretary must approve such a prosecution after determining that the civilian prosecution had failed to meet the ends of good order and discipline.