Air Force pilot's sex assault dismissal sparks cries for reform
By NANCY MONTGOMERY | STARS AND STRIPES Published: March 3, 2013
An Air Force general’s decision to overturn a jury’s guilty verdict and reinstate a fighter pilot convicted of sexual assault could prove to be a lightning rod in efforts to legislatively strip commanders of their long-held authority in sexual assault cases, victims’ advocates say.
Third Air Force commander Lt. Gen. Craig Franklin’s decision to reinstate Lt. Col. James Wilkerson was a stunning example of structural problems in an outdated military justice system rife with bias that discounts victims while emboldening offenders, advocates said.
“It’s really shocking,” Susan Burke, a lawyer who represents numerous military women in lawsuits against the Defense Department, said of the case.
“It’s inexcusable. It’s like the poster child for why we need reform. It proves to Congress why they have to act,” she said.
Greg Jacob, policy director of the Service Women’s Action Network and a former Marine infantry officer, was likewise taken aback.
“It’s atrocious. It’s infuriating,” he said. “It’s a perfect example of the due process system being overridden just at the whim of the commander. It’s a real travesty of justice.
“Now suddenly he’s not guilty? If there’s a sexual assault in this guy’s unit after he shows up, do you think anyone’s going to report it?”
The case has also outraged legislators and is expected to be examined at a congressional hearing later this month.
“We’re going to do a press conference on this case,” said Rep. Jackie Speier, a California Democrat who last year introduced a bill to create a new department within the Defense Department to handle sexual assault cases. The bill required sexual assault prosecutions to be handled by military and civilian experts and removed commander authority. That would inject professionalism into the process and remove commander conflicts of interest, she said.
She said she would reintroduce the legislation this year, that the idea was gaining traction, and that the Wilkerson case would further propel the idea.
“It’s a mockery of the UCMJ (Uniform Code of Military Justice) and the entire sense of military justice,” she said. “There always is a tipping point.”
Franklin’s decision to set aside the verdict freed Wilkerson after four months in a South Carolina brig, erased his conviction and restored the F-16 pilot, who’d been selected for promotion, to full-duty status.
Franklin, the authority who convened the court-martial, had concluded in his post-trial review that the evidence did not prove Wilkerson’s guilt beyond a reasonable doubt, according to a Third Air Force statement. The decision was contrary to the recommendation of his staff legal adviser.
Franklin is also an F-16 pilot and formerly commanded the 31st Fighter Wing to which Wilkerson was assigned. A spokesman said that neither fact played any role in the general’s decision.
Wilkerson, 44, the former 31st Fighter Wing inspector general was accused last March by a 49-year-old physician’s assistant of groping her breasts and vagina as she slept in a guest bedroom at the Wilkerson home after an impromptu party.
An all-male jury of four colonels and one lieutenant colonel convicted him of aggravated sexual assault after a weeklong trial in November at Aviano Air Base, Italy. The jury sentenced him to dismissal, total pay forfeiture and a year in jail.
Franklin’s decision to overturn that in effect conveyed that the jury, guided in the law by the presiding judge, had made a serious mistake, military lawyers said.
“If the CA (convening authority) has such little faith in the rulings of the MJ (military judge) and their effect on the reliability of the trial’s outcome, why make the CW (complaining witness) go through this whole trial?” said a poster on the National Institute of Military Justice’s blog identified as an Air Force defense attorney. “I have to say this is the worst case for everybody.”
Others on the blog lauded Franklin’s decision as a courageous one unlikely to help further his career.
Court-martial convening authorities have traditionally been imbued with vast discretionary powers unmatched by all parties in civilian criminal justice procedures. They decide whether to bring charges and, conversely, may decide to throw them out after a judge or jury convicts a defendant.
They may not increase a sentence but they may reduce punishment, or dismiss charges or convictions “for any reason or no reason,” according to the Rules for Courts-Martial.
That’s been considered an integral part of command authority and “a core value of military justice,” said Victor Hansen, vice-president of the National Institute of Military Justice.
“The rationale is that the commander has the best sense of what’s appropriate, what’s best for good order and discipline,” said Hansen, a former Army lawyer who’s now a law professor in Boston. “It’s the commander’s command and his responsibility.”
Franklin’s stated reason for tossing the conviction — that Wilkerson’s guilt had not been proved beyond a reasonable doubt — struck Hansen as among the least legitimate reasons imaginable, he said, because it substituted the general’s judgment about the facts of the case over that of jurors, who, unlike Franklin, were at the trial and able to observe witnesses. He also said it seemed likely to him that the decision undermined, rather than promoted, good order and discipline.
But the decision was “an outlier,” Hansen said, and he believed commanders, who shoulder absolute responsibility for their troops and their missions, should retain their discretionary powers. “The commander needs to have that authority,” he said.
The Wilkerson case could spur legislative action to change that, Hansen said. “This could be Exhibit A.”
The Air Force was the first of the services to take steps to address sexual violence after a 2003 sexual assault scandal at the Air Force Academy: female cadets reported being assaulted and their complaints were discounted by officials.
Gen. Mark Welsh III, Air Force chief of staff, has stated repeatedly that the service would continue to press to change a culture that has enabled assaults, to provide protection and support to victims and bring justice to perpetrators.
A spokeswoman for Welsh said he would not comment on the Wilkerson case.
The case, in which prosecutors won a conviction against a senior leader based on the credibility of a less powerful accuser and corroborating circumstantial evidence, had been hailed as evidence that the Air Force was intent on change.
“Here was a case where everything worked,” Jacob said. “And all of that work and all of that effort was negated by a single commander.”
Good-faith efforts to reduce the incidence of sexual assault are doomed, advocates maintain, without changing a system that gives the ultimate power to decide case outcomes to one person — one untrained in the law; biased by the very nature of his position, they say; and answerable to no one.
Such a system is correctly seen as unfair and unreliable, they say.
“If you don’t fix the structural issues, you won’t have trust in the system,” Burke said. “And if you don’t have trust in the system, you’ll have continued, significant underreporting.
“And if you have significant underreporting, you will not be incarcerating predators,” she said. “So you’ll continue to have a significant sexual predation problem.”
Independent prosecutors should make charging decisions just as civilian prosecutors do, and juries and judges should determine verdicts and sentences, victims’ advocates say. Those would stand unless an appellate court deemed otherwise.
Decisions would rest with more than a single, supreme authority.
“You wouldn’t have some lieutenant general sitting in a leather chair reinstating convicted sex offenders with the stroke of a pen,” Jacob said.