Hagel to U.S. military: Ignore President Obama on sexual assault

Military lawyers are using a May comment from the president to derail the prosecution of sexual assault cases

Published August 15, 2013 7:28PM (EDT)

Secretary of Defense Chuck Hagel  (Jeff Malet, maletphoto.com)
Secretary of Defense Chuck Hagel (Jeff Malet, maletphoto.com)

Defense Secretary Chuck Hagel has issued a directive ordering the military to ignore a May statement made by President Obama in which he said that service members who commit sexual assault should be "prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged."

As the New York Times reports, since the president made the comment, lawyers in dozens of sexual assault cases have used his words as a justification to prevent the prosecution of service members accused of sexual assault. Hagel's memo -- instructing the military that “there are no expected or required dispositions, outcomes or sentences in any military justice case, other than what result from the individual facts and merits of a case and the application to the case of the fundamentals of due process of law” -- is an attempt to counteract this trend.

More from the Times:

Since May, when Mr. Obama said at the White House that sexual offenders in the military ought to be “prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged,” lawyers in dozens of assault cases have argued that Mr. Obama’s words as commander in chief amounted to “unlawful command influence,” tainting trials and creating unfair circumstances for clients as a result.

Their motions have had some success. At Shaw Air Force Base in South Carolina in June, a judge dismissed charges of sexual assault against an Army officer, noting the command influence issue. In Hawaii, a Navy judge ruled last month that two defendants in sexual assault cases, if found guilty, could not be punitively discharged because of Mr. Obama’s remarks...

Experts in military law said it was unusual for a memorandum like Mr. Hagel’s to come from the secretary of defense, who directed recipients to “ensure this message is widely and immediately disseminated throughout your organizations.”

“It is a remarkable document,” said Eugene R. Fidell, who teaches military justice at Yale Law School. “I can’t remember a document quite like this coming from an official at this senior a level. It has been said that ‘unlawful command influence’ is the mortal enemy of military justice.”

But this directive, Mr. Fidell said, “is a kind of anti-venom to try to counteract the unfortunate statements that have given rise to the current wave of unlawful command influence motions.”

By Katie McDonough

Katie McDonough is Salon's politics writer, focusing on gender, sexuality and reproductive justice. Follow her on Twitter @kmcdonovgh or email her at kmcdonough@salon.com.

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Military Sexual Assault Rape Sexual Assault Violence Against Women Women's Rights