Friday, August 12, 2022

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Political Mercury

Sexual assault in the military: When will they ever learn?


(Editor’s Note: This week’s guest Political Mercury column is from Breda, Iowa, native Merle Wilberding who has practiced law for more than 40 years. During the Vietnam War he served four years as a captain in the U.S. Army JAG Corps, representing the U.S. Government in the appeals of courts-marital convictions, including two of the most famous cases in military history: the “Presidio Mutiny” case and the “Lt. Calley – My Lai Massacre” case. Wilberding currently serves as a senior partner at Coolidge Wall Co., LPA, a 35-person business law firm in Dayton, Ohio.)

Pete Seeger’s refrain from “Where Have All the Flowers Gone,” comes back to me, over and over, like a broken record. When will the military ever learn that sexual assault in the military is a very serious crime that is systemic and dangerous to our children and grandchildren?

Three recent criminal cases reveal outrageous conduct by the very military leaders that should be protecting victims of sexual assault. Just a couple of weeks ago, Lt. Col Jeffrey Krusinski, the chief of the Air Force Sexual Assault Prevention and Response Program, was arrested for groping a woman in a parking lot in Arlington, Va.

This past March, Lt. Gen. Craig Franklin, the convening authority of Aviano Air Base in Italy, set aside the court-martial conviction of Lt. Col. James Wilkerson for sexual assault allegedly because he believed the accused over the victim.

Then at Vandenberg Air Force Base in 2011, Lt. Gen. Susan Helms set aside Captain Herrera’s court-martial conviction for aggravated sexual assault.

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These cases have rightfully outraged Congress and the public, for they destroy the credibility of those in the military who claim that they are doing everything they can to prevent sexual assaults and protect the victims.

Sexual assaults have become epidemic in the military. Published reports show that more than 3,000 sexual assaults were reported by members of the military in 2012, but the great majority — an estimated 25,000 — go unreported.

This issue became personal to me when I was asked to represent Mary Lauterbach, the mother of Marine Maria Lauterbach, who reported a sexual assault by Cpl. Cesar Laurean. Maria then suffered months of taunts and torments from other military personnel before she was savagely murdered by Laurean and buried in a fire pit in his own backyard.

Mary Lauterbach became the voice of Maria, and together we went to Congress and testified before various committees to increase the protection and rehabilitation of victims and to push for ways to expand the reporting of sexual assaults and increase the prosecutions. Because of military reluctance, the changes made were not as effective as we had hoped.

When sexual assaults do occur at military bases, all too often the prevailing theory seems to be: “Well, we have a war to fight. Whatever happened last night was last night. Get over it, and let’s get back to fighting the war.”

That attitude outrages Congress, and I expect the authority of the convening authority will be drastically changed, and it should be. Congressman Mike Turner, R-Ohio, and Congresswoman Niki Tsongas, D-Mass., introduced the BE SAFE ACT as HB 1867. This legislation would severely limit the ability of the convening authority’s unfettered discretion by removing his ability to set aside convictions and, in the case of serious sexual assault crimes, would require at a minimum a dismissal or a dishonorable discharge.

The movement toward an independent judiciary has been continuing for more than 40 years. The 1968 Military Justice Act took the bold step at the time to remove the legal officer who presided over courts-martial and replaced him with a military judge. Military judges were taken out of the chain of command of the convening authority and instead began to report directly to the head of the military judiciary in the Pentagon.

The BE SAFE ACT pushes that prosecution pendulum toward an independent judicial system. The commander — whether he (or she) is the commander of a unit or a commander of an entire military base — should be preparing troops for combat. But when crimes occur, the prosecution of those crimes should be done as part of a judicial system, not as part of a disciplinary system.

Without a significant change in our military culture, we cannot expect America’s families to encourage or even permit their daughters to join the military. Without a significant change in our military culture, we cannot believe that our government is protecting our next “finest generation.” Instead, we will be staring at our fate, wondering when they will ever learn. CV

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