“[I]t’s relatively easy to stand up for beliefs when it’s the popular thing or the in vogue thing. It’s relatively easy to be pro-victim or anticrime. But it can be quite another to be against the injustice done to [the] accused, especially when they are already considered guilty by society, by the media, by their unit and by their commander, all prior to trial.” In recent years, political actors and the media have devoted substantial attention to the alarming prevalence of sexual assault in the United States Armed Forces. As the issue has drawn the public’s ire, Congress, the President, and the Department of Defense have responded by calling for and implementing aggressive measures to curb military sexual assaults and punish offenders. These are laudable goals. But, in their eagerness to solve this complex problem, the Executive and Legislative Branches have created another problem: in the military justice system, an accused’s due process rights have been compromised to ensure increased and expedited convictions. This Note examines how the military justice system prosecutes sexual assault cases, focusing on the procedural due process problems facing an accused in an adult rape case. Part II explains the framework for analyzing cases and the climate in which they are prosecuted. Part III explores overarching features of the military justice system that are particularly problematic in the context of sexual assault prosecutions before turning to the distinct inequities facing an accused in the current pretrial, trial, and sentencing phases of a court-martial. Part IV argues that the military justice system should be rebalanced by making four changes that would enhance an accused’s due process rights.
The full text of this Note is available to download as a PDF.