Two defendants in military sexual assault cases cannot be punitively discharged, if found guilty, because of “unlawful command influence” derived from comments made by President Barack Obama, a judge ruled in a Hawaii military court this week.
Navy Judge Cmdr. Marcus Fulton ruled during pretrial hearings in two sexual assault cases — U.S. vs. Johnson and U.S. vs. Fuentes — that comments made by Obama as commander in chief would unduly influence any potential sentencing, according to a court documents obtained by Stars and Stripes.
On Wednesday and Thursday, Fulton approved the pretrial defense motions, which used as evidence comments that Obama made about sexual assault at a May 7 news conference.
“The bottom line is: I have no tolerance for this,” Obama said, according to an NBC News story submitted as evidence by defense attorneys in the sexual assault cases.
‘I expect consequences,” Obama added. “So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable — prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged. Period.”
The judge’s pretrial ruling means that if either defendant is found guilty, whether by a jury or a military judge, they cannot receive a bad conduct discharge or a dishonorable discharge. Sailors found guilty under the Uniform Code of Military Justice’s Article 120, which covers several sexual crimes including assault and rape, generally receive punitive discharges.
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Obama’s comments could have long-term effect on sex assault cases
President Barack Obama’s call last month for strict punishments for military sexual assault — and a military judge’s ruling that those comments from the commander in chief crossed the line — will likely have immediate impacts on sexual assault prosecutions, military legal experts said.
Navy Judge Cmdr. Marcus Fulton issued the ruling last week in two sexual assault cases just as controversy over the military’s allegedly lax handling of such cases reached a boiling point in Congress, where legislators writing next year’s defense authorization bills sparred over whether commanders should control prosecutions for sexual assaults within their chain of command.
In a pretrial ruling, Fulton ruled out punitive discharges for two defendants if convicted, citing “evidence of unlawful command influence” by Obama when he told reporters in May, “If we find out somebody’s engaging in this, they’ve got to be held accountable — prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.”
Starting now, the unlawful command influence argument will begin popping up in cases throughout the armed forces, military defense attorney Greg Rinckey predicted.
“If I’m the defense counsel, I’m going to be raising this case,” he said. “I think a defense attorney is ineffective if he doesn’t at least raise this.”
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