Due to the nature of the military structure and chain of command, unlawful command influence (UCI) is easily the most prominent concern of a defense lawyer. UCI is theoretically prohibited by Article 37 of the UCMJ, which states: “No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case or the action of any convening, approving, or reviewing authority with respect to his judicial acts.” Since 1956 (U.S. v. Hawthorne), the military courts have fleshed this prohibition out to include “the appearance of improperly influencing the court-martial proceedings.” Although Article 37 on its face appears to apply only to service members subject to the U.C.M.J., the Court of Appeals for the Armed Forces (CAAF) has indicated that it is improper for senior civilian leaders to influence a court-martial. (U.S. v. Hagen, 1987 and U.S. v. Simpson, 2003.) This extension of the UCI doctrine is probably based less upon Article 37 of the U.C.M.J. and more upon the Due Process Clause of the Fifth Amendment. Today, military courts often grant relief where the actual command influence is obvious (a commander gets caught attempting to direct an outcome; such as in U.S. v. Boyce, 2017). But what is just as pernicious, and affects every service member accused of sexual assault, is the structural UCI now present within the system as a whole. Here are a number of examples (and the last two are probably the worst):
Example 1: Army Directive 2013-20 directed changes to the evaluation systems such that over and over again officers and NCOs are rated on their commitment to SHARP (the Sexual Harassment/Assault Response and Prevention Program). In fact, Soldiers are rated such multiple times on their evaluations, more than their commitment to military or physical readiness. (Navy and Marine Fitness Reports have a similar focus for “leaders” — i.e. those service members who would sit on a panel.) Also in 2013, then Chief of Staff of the Army Gen. Ray Odierno stated that the Army’s number one priority was combatting sexual assault and sexual harassment, not winning wars. https://www.army.mil/article/104753/odierno\_sexual\_assault\_harassment\_cannot\_be\_tolerated\_in\_army
These evaluation forms apply to the panel members who are trying a Soldier for sexual harassment. How are they supposed to give him or her a fair trial?
Example 2: Almost every time a service member logs into a DoD computer system they will see a pop-up about fighting sexual assault and they will see banners and display tables in the entry of the building they work in. They will attend regular briefings on it. They are ordered to watch *The Invisible War* (a “documentary” with numerous documented factual inaccuracies). Then they are supposed to turn around and sit as fair and objective panel members?
Example 3: All of the military services provide lawyers and even paralegals to alleged sexual assault victims (usually called “special victim’s counsel” or “SVC”). I’ve personally defended a court-martial where the SVC outranked everyone in the courtroom except for the panel president. Yet, except for the Navy (which has a grand total of eight), the services refuse to provide investigators to the defense. Practically every public defender office in the United States has its own trained investigators. But, if you are service member (except possibly in the Navy), you will not have a defense investigation of your case. You would be better off as a civilian. This is a simple, undeniable fact. (And a reason to hire a civilian lawyer who has his own resources.)
Example 4: Numerous military SHARP or equivalent programs have taught that one drink means you cannot consent to sex. This is simply a lie. In the real world people drink and have sex. They even get drunk and have sex. The law is that an “incapacitated” person cannot consent to sex. Go to any bar or restaurant and you will see a lot of people drinking and none of them are incapacitated (usually). The military also teaches that you have to get “express consent” (here is an example: https://www.army.mil/article/124450/wiesbaden\_focuses\_on\_sharp\_asap\_during\_stand\_down\_event). This is also a lie. In the real world, people have implied consent to sexual activity (i.e. they don’t need to carry on a conversation about it) all the time.
Example 5: This one is incredible. Army Regulation 623-3-19, states that if a Soldier is acquitted at a court-martial or an Article 15 proceeding, the allegations cannot be mentioned in their evaluation (which makes sense out of simple fairness). With one exception: if it was allegation of sexual assault or harassment or failing to report such an allegation. To be clear: if you are charged with murder or treason or espionage or desertion and then acquitted of that allegation, it cannot be mentioned on you OER or NCOER. If you are charged with anything dealing with sexual assault or harassment, it must be discussed on your evaluation (almost certainly resulting in a career ending referred evaluation) even though you were acquitted. Yes, this is true. In the United States Army. Not in Soviet Russia. Fact.
None of these examples are of straightforward unlawful command influence on a particular case. But they are all examples of a structural UCI within the military justice system.
