Military Justice System Problems Go Beyond Sexual Assaults

By Sarah Martinson | October 17, 2021

First Lt. Brian Santana Overton, 27, joined the U.S. Air Force Reserve Officers' Training Corps in 2014 seeking economic opportunities that he otherwise wouldn't have access to in Puerto Rico.

The ROTC program allowed Santana Overton to get a bachelor's degree in psychology at the University of Puerto Rico in Mayagüez and made him a commissioned Air Force officer after he graduated from college in 2016, setting him on a military career path.

However, after Santana Overton's wife, Amy Marsh, reported that she had been raped by a chief master sergeant following a Christmas after-party in 2018 on Travis Air Force Base near Fairfield, California, the military stopped him from advancing in his career as an Air Force officer and almost destroyed their marriage, according to Santana Overton and Marsh.

"It felt like the entire world was fighting against us, and that was the darkest days of our marriage because we had so much hope at the beginning, but then, the Air Force that we once loved so much turned its back on us," Marsh, 28, told Law360.

A commander refused to prosecute charges in a court martial against the sergeant, a high-ranking enlisted Air Force member known as Chief by his unit, saying that Marsh's case didn't have enough evidence and she wasn't drunk enough at the time of the assault, according to Marsh.

Marsh said the commander's explanation doesn't make sense to her because she had multiple, different mixed drinks that night. A processed rape kit could have provided Marsh with more evidence for her case, but she didn't go to a hospital to have a forensic sexual assault examiner collect evidence like hair, clothing fibers, semen, urine, blood and photos of any injuries.

When Marsh woke up after the assault, she was confused about what had happened because she didn't remember all the details of the previous night, and Chief made it seem like they had consensual sex and it could be their secret, she said.

"I had no idea what to do, and so I went home that day and acted like everything was normal," Marsh said.

Her husband didn't go to the after-party, and everyone else at the gathering was drunk, so as far as Marsh knows, no one witnessed the assault or what happened leading up to it, she said.

The U.S. Uniformed Code of Military Justice for court martials, under Article 120, defines sexual assault as "a sexual act upon another person when the other person is incapable of consenting to the sexual act due to — impairment by any drug, intoxicant or other similar substance, and that condition is known or reasonably should be known by the person."

After Marsh reported her assault to Travis Air Force Base in 2019 and a base commander refused to court martial Chief, an Air Force general disciplined Chief by forcing him to retire from the branch and taking away one of his ranks, Marsh said. Chief denied any wrongdoing, according to Marsh.

The Air Force is prohibited by federal law from releasing specific details about the case without a signed Privacy Act waiver, Amanda M. Farr, a spokesperson for the Travis Air Force Base, told Law360 in response to a request to comment.

"Travis Air Force Base is committed to fostering a culture of dignity and respect for all, and ensuring the safety and well-being of its personnel, families and the community. The Air Force takes allegations of misconduct by any Airman very seriously, investigates the allegations fully, and takes appropriate action whenever warranted. In this case, the allegations were fully investigated, reviewed, and the disposition process rendered in accordance with federal law and Air Force and DoD regulations," Farr told Law360 in an email.

Chief's punishment resulted in him getting less money in retirement, Marsh said, noting that she didn't think it was a severe enough punishment because he was already planning to retire from the military.

In addition, Santana Overton was issued a letter of reprimand, later reduced to a letter of admonishment, for impermissibly socializing with enlisted soldiers after work hours, threatening to hurt another person and inappropriately dancing at the base's Christmas party, according to Marsh. Marsh said none of these claims are true and the letter prevents him from being promoted in the Air Force.

"My husband suffered way more than [Chief] did, so I feel like it's not fair that he only had a stripe taken away, and he only gets a pay cut in retirement," she said.

Marsh, who testified in March at a Senate committee hearing on military sexual assault, said she believes her case would have led to a different outcome if Congress had already passed a bill that Sen. Kirsten Gillibrand, D-N.Y., has been fighting to enact into law for the last eight years. The bill proposes removing commanders' authority to decide whether to prosecute military members for nonmilitary felony offenses including rape, murder, kidnapping, child abuse and domestic violence.

Gillibrand's proposed bill — the Military Justice Improvement and Increasing Prevention Act — is incorporated in the Senate's national defense bill for next year, but is not included in the House's version of the bill. The House's 2022 National Defense Authorization Act only proposes stripping commanders of their prosecutorial authority over sexual assault cases, aligning with a recommendation from a military sexual assault task force.

Both defense bills, however, promise to implement all 82 recommendations from the U.S. Department of Defense's Independent Review Commission on Military Sexual Assault for reforming how the military justice system handles sexual assault cases. The bills also propose additional military justice changes related to victims' rights, jury selection, sentencing, protective orders, retaliation and more, acknowledging that flaws of the U.S. military justice system extend beyond the mishandling of sexual assault cases.

"Up until this point we've passed 250 different reforms that the DOD was OK with, and none of them have made a difference," Gillibrand told Law360. "We still had approximately 20,000 sexual assaults last year and the rate of conviction and the rate of cases going forward to trial has declined."

The Defense Department and several branches of the military did not respond to requests for comment about the need to reform the military justice system.

Retired Air Force Col. Don Christensen, a former military prosecutor and current president of Protect Our Defenders, a nonprofit dedicated to ending sexual violence in the military, said lawmakers need to overhaul the entire U.S. military justice system because it's archaic, with a framework that's inherited from a British system created by King George III and that has ties to ancient Rome.

Christensen noted that previous military justice reforms made by lawmakers haven't addressed fundamental problems like commanders' prosecutorial authority. The biggest problem with the system is that felony cases, especially sexual assault cases, are often not prosecuted by commanders, allowing offenders to dodge accountability, he said.

"The average commander never uses his authority, but [commanders] act like it is the only thing between them and chaos," Christensen said. "It's time to break ties with King George III and have a real justice system that protects the rights of an accused and delivers justice to those people who have been victimized."

The U.S. military justice system was established during the American Revolutionary War by the country's founding fathers to be used during wartime when there wasn't time to have standard trials on the battlefield over military offenses like desertion, disrespect to an officer or murdering a fellow U.S. soldier, according to University of New Mexico law professor Josh Kastenberg. Kastenberg served in the Air Force for 23 years as a military attorney and judge and wrote the book "To Raise and Discipline an Army" about the history of the U.S. military justice system.

In 1950, when Congress enacted the UCMJ, bringing uniformity to military justice, Kastenberg said, the law created a fairer system by making court martials more like state and federal criminal trials, and expanded the armed forces' prosecutorial authority to nonmilitary crimes like robbery and fraud committed by its service members during peacetime.

"It was the greatest extension of military law in history, which is an oddity because I think the framers of the Constitution would have frowned on it," Kastenberg said, noting that America's founding fathers never intended on having a standing, or full-time, army when the country wasn't at war or for the military to have prosecutorial authority over soldiers during peacetime.

The U.S. has approximately 2.1 million military members, according to the DOD, meaning that a group of Americans roughly the same size as the state of New Mexico's total population are subject year-round to a separate criminal justice system than the civilian one for offenses like murder, rape and kidnapping.

Since Congress enacted the UCMJ, lawmakers have made amendments to the military justice system. Two significant changes that lawmakers made are adding judges to court martials in 1969 and giving the U.S. Supreme Court authority over the U.S. Court of Appeals for the Armed Forces in 1983, according to military law experts.

Over the last 30 years, legislators have been particularly focused in their UCMJ reform efforts on addressing military sexual assaults after the Tailhook scandal in which Navy and Marine Corps officers were found to have assaulted more than 80 women at a 1991 symposium in Las Vegas, experts say.

Some military justice-related changes that lawmakers made related to sexual assault cases in the armed forces include requiring that legal services be provided to victims, giving victims more rights in military judicial proceedings, mandating that soldiers be dismissed or discharged if convicted of rape or sexual assault, and revising whistleblower protections for individuals who report sexual misconduct, according to NDAA legislation.

However, many lawmakers, victims and ex-military members say these reforms are not enough in light of the fact that thousands of soldiers each year are victimized by sexual violence, victims are afraid to report their assaults, cases are not being prosecuted by the armed forces and assailants are allowed to stay in the military and continue to prey on service members.

"What we have done is we've created a stovepipe system where the military is really like its own government entity, and there are no checks and balances," said Amy Braley Franck, a former sexual assault response coordinator for the Army and founder of Never Alone, a coalition seeking to end commanders' abuse of power in the military.

Braley Franck is a whistleblower who reported that Army commanders were allegedly mishandling sexual assault cases by unlawfully opening their own internal investigations into the matters instead of referring them for criminal investigations. She testified alongside Marsh in March at the Senate committee hearing on sexual assault in the military.

About 20,500 military members are believed to have been sexually assaulted in 2018, a 21% decrease from 26,000 soldiers in 2012, according to DOD's 2020 annual study on sexual assault in the military. Roughly 70% of those estimated sexual assaults weren't reported to the DOD, the study says.

Many military sexual assault victims are afraid to come forward because of what they see happen to people who do report their assaults — they are retaliated against by their superiors and other soldiers and commanders do not prosecute their cases, according to victim advocates and military sexual assault survivors.

More than 60% of women service members experienced retaliation for reporting their sexual assaults and nearly 40% suffered professional blowback in 2018, according to the DOD study. Among the women who reported their assaults, about 40% reported that they felt largely supported by their leadership, the study says.

Marsh said she sometimes regrets reporting her assault because it ruined her husband's career, and he will never be a military commander like they thought he would be one day.

"The trauma of the assault was a one-time thing. ... The repercussions [of reporting] are way worse because that affects our future," she said.

Supporters of removing commanders from the prosecution of sexual assaults and other nonmilitary felony offenses say this reform would be a game changer for victims, removing fear of reporting offenses and leading to more cases being prosecuted by the military — though some military law experts and former service members disagree with this assessment.

In 2020, less than 25% of sexual assault cases were prosecuted by the military and less than 15% of sexual assault offenses led to administrative discharge or action, according to the DOD study.

Commanders often don't prosecute cases over criminal offenses because they know the accused and don't believe the victims' allegations, according to ex-military attorneys and sexual assault victim advocates. Other reasons they pointed to include racial bias or a conflict of interest — commanders don't want their reputations to be hurt or to lose a good soldier.

Critics of commanders' prosecutorial power liken the situation to civilians in the private sector having their supervisor's boss deciding whether they should be charged for rape, murder, kidnapping, trafficking or other serious crimes, and the jury is their coworkers.

If corporations acted like the military, senior executives could decide to ignore criminal accusations against an employee based on whether they like that worker or believe that individual is a good person, critics say.

But if companies ignored felony accusations against an employee and continued to promote that individual, governmental authorities would fine and prosecute them, but the federal government doesn't do that with the military, they say.

"People would lose their minds. ... There'd be criminal lawsuits. There'd be civil lawsuits. The company would be shuttered probably because the person who was assaulted would end up bankrupting the company," said Erin Kirk-Cuomo, co-founder of Not In My Marine Corps, a grassroots organization fighting to end sexual assault and harassment in the U.S. armed forces. Kirk-Cuomo is a former combat photographer for the U.S. Marine Corps.

Military justice reform advocates are also concerned that commanders' racial and gender biases play a role in their prosecutorial decisions. According to a 2019 U.S. Government Accountability Office report, with commanders in charge of prosecutorial decisions, more minority service members than white soldiers were court martialed even though fewer minorities serve in the armed forces. Black soldiers are roughly two times more likely than white service members to be investigated and court martialed for military code violations, the report says.

Some military law experts and former military members say that removing commanders' prosecutorial power over sexual assaults and other felony offenses won't lead to more court martials because military prosecutors want to win their cases and will likely only refer winnable cases for court martials.

They also say that stripping commanders of their authority will take away their greatest tool for maintaining good order and discipline in their units — prosecution — and won't lead to a cultural change in the military that is needed to end its sexual assault epidemic.

Tim MacDonnell, a Washington and Lee University School of Law professor who served 14 years as a prosecutor for the Army, said abuse of power can be found in any justice system, but that doesn't mean commanders should lose their prosecutorial authority. He said in most instances, commanders are listening to recommendations from military prosecutors under them, known as Judge Advocate General officers, about whether to refer a case to a court martial.

"Even though they make the decision, they are involved in the prosecutorial decision, they are not alone, and commanders can't hide sexual assaults. One, it is going to come out, and two, it is the one way for sure that a commander can ensure he or she is going to lose their command," MacDonnell said.

However, proponents of having JAG officers who don't work for the commanders take over decisions about bringing charges to a court martial say commanders frequently escape punishment and don't receive harsh enough penalties. No general officer had ever been court martialed before 2021, according to Southwestern Law School professor and former military prosecutor Rachel VanLandingham, when Maj. Gen. William Cooley, a former commander of the Air Force Research Laboratory, was charged with a sexual assault.

Gillibrand has said on multiple occasions before lawmakers and in media interviews that the U.S. should join its foreign allies — the U.K., Canada, Israel, Australia, the Netherlands and Germany — in removing commanders from prosecutorial decisions, noting that these countries haven't lost good order and discipline in their troops as a result of it.

However, even with such a change, other aspects of the military system can prevent victims from receiving justice in their cases, experts say.

Darchelle Mitchell, 48, enlisted in the U.S. Navy in 2004, after earning a bachelor's degree in psychology and having two sons, wanting to be an example for her kids like her father, who served in the Army for 22 years.

Within three months of being stationed in Italy, she was raped by a coworker who broke into her locked bedroom in her home in 2008. The Naval Criminal Investigative Service never before had so much evidence for a case, including photos of the broken door and her ripped clothes, her assailant's DNA on her clothes and comforter and her rape kit, Mitchell said.

After her case was referred to a special court martial, her assailant was found not guilty, according to Mitchell. Mitchell said she believes the three-member jury found him not guilty because they were his Navy sailor buddies.

Military sexual assault survivors and victim advocates criticize the military over its jury selection process in court martials and the fact that jurors may know the accused or the victim, or both, and could even be their superiors.

In the U.S. civilian criminal justice system, juries typically have 12 members, and the attorneys for the victim and the accused weed out potential jurors for bias and prejudice. It is unheard of for a juror to know the accused or victim and be allowed to sit on a jury in the civilian system.

Mitchell went back to the U.S. after the court martial, and for the rest of her 14-year career in the Navy, her coworkers and superiors at every base where she was stationed harassed her about her sexual assault. According to Mitchell, she was told by superiors that she probably wanted her assailant to have sex with her and that "No doesn't mean no. It means try harder."

Mitchell said the military shattered her life, leaving her with nightmares, unable to rejoin the civilian workforce and scared to be around people.

"It wasn't the sacrifice that I was supposed to make for the military, and I made that sacrifice," she said.

DOD has promised to implement the military sexual assault independent review commission's recommendation that jurors be randomly selected in sexual assault cases, and the House has proposed in the 2022 NDAA to allow commanders and prosecutors to ask for randomized jury selection in all court martials. Unless the House's proposal passes in the Senate and is included in the final 2022 NDAA, victims of other felony offenses like kidnapping and domestic violence will not be entitled to randomized juries in military court.

The proposed military justice reforms in the House and Senate bills are only a first step, advocates say. The bills don't propose reforms to jury verdict requirements, jury sentencing in some felony cases or the military court appeals process, leaving obstacles in place that can still prevent victims like Shawnia Culp from achieving justice in their cases.

Culp, 39, joined the U.S. Army in 1999, wanting to follow in the footsteps of her father, who served for about 20 years. She spent six years on active duty, fought in Iraq and Kuwait and went on to work as a civilian for an Army mental health unit while being a reservist, a soldier who works as a civilian unless needed on active duty, after she had her son.

Culp was raped by a reservist in her hotel room when she was at a commanders' conference in Minnesota in 2009. She reported her assault several times over an eight-year period before writing a letter to Army Lt. Gen. Charles D. Luckey, who called for an investigation into her case, according to Culp.

Culp said her case was referred to a general court martial and her assailant was found not guilty, even though six out of the nine jurors found him to be guilty. In general court martial proceedings, a three-fourth majority is needed for a defendant to be found guilty by a jury, according to the UCMJ.

In the civilian criminal justice system, judges encourage juries to deliberate until they reach a unanimous decision. If a jury can't reach a unanimous verdict, it is called a hung jury, and victims and defendants get a retrial, which is not the case in the military justice system.

Culp's post-traumatic stress disorder from fighting in the Middle East and from her sexual assault has led to depression, multiple hospitalizations, attempted suicide and not being able to be mentally and physically present for her son.

During the time of the court martial, she couldn't sleep and felt like she was being choked every time she lay down in her hotel room, Culp said.

"When I got home, I knew that there was nothing that anybody could do to help me," she said.

The consequences of the military's flawed justice system are broken dreams, shattered families and lost hope, according to victims. Many military sexual assault victims leave the armed forces after their assault, and civilians who are aware of the armed forces' toxic culture involving violence against women, harassment and racism do not want to join or have their children join its ranks.

"If we protect [assailants] and keep them from being prosecuted the way they are supposed to be prosecuted, then we are breaking down the very system that we are actually fighting for," Mitchell said.

--Editing by Marygrace Murphy. Illustration by Jason Mallory.

Clarification: This article has been updated to clarify that Mitchell's case was referred to a special court martial. 

Correction: A previous version of this article misstated how many jurors were in Culp's court martial and how many jurors are needed for a guilty verdict. The errors have been corrected.  

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