Curbing “Different Spanks for Different Ranks”

Pending legislation would end Pentagon's "good military character" defense

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There’s long been a U.S. military tradition—actually, a recognized legal defense—of citing a defendant’s excellent military past as a way to sow seeds of reasonable doubt to avoid conviction during court martial.

“Generally, the introduction of evidence of a defendant’s good military character is intended to provide the basis for an inference that the accused is too professional a soldier to have committed the offense with which he is charged,” noted a 2001 article in Military Law Review.

But amid the pending changes to the Pentagon legal system to make it easier to prosecute alleged sexual assaults, that defense is likely to go the way of flogging as a tool of military justice. It now appears that the near-century-old practice will only be permitted in cases where military character is directly relevant to the charges against the accused.

The U.S. military is growing apart from the civilian society from which it springs. But this latest change to the armed forces—along with an expanding role for women, and allowing openly gay men and women to serve—is the latest example of where their separate worlds seem to be converging to some degree.

The change is setting off debate in military legal-eagle circles. “A military accused isn’t accused of violating just any penal code,” argues a military attorney on a military-justice website. “He’s accused of violating the Uniform Code of Military Justice. In that context, I see his military character as indisputably `pertinent.’”

Others disagree. “Character evidence that a person is `law abiding’ or a `good citizen’ has long been prohibited in civilian courts,” a second poster maintains. “If you’re charged with raping your neighbor in federal court you don’t get to introduce evidence that you’re a `good father,’ `good carpenter,’ or a `good citizen’ under the theory that good fathers (etc.) are less likely to rape.”

The ability to present evidence that the accused is a good soldier has long been a valuable tool for military defense lawyers at courts-martial and other legal proceedings. The U.S. military justice system, by and large, has gone along. “Military courts are staunch supporters of such evidence as a relevant character trait to nearly every offense under the Uniform Code of Military Justice,” writes Army Major Rebecca Kliem on the Army’s staff judge advocate school’s blog, where she is an associate professor of criminal law.

“Given this expansiveness, imagination is the only limit of what demonstrates `good military character’; any desirable trait in a service member counts,” Army lawyer and Major Franklin Rosenblatt argued in the Army Lawyer journal in 2010. “In application, character witnesses are commonly called to testify about their willingness to deploy with an accused. Other allowable `good military character’ testimony includes that an accused is `dedicated to being a good drill instructor,’ lawful, easygoing, dependable, and well liked. With so many traits to choose from that are permissible and admissible, nearly anyone can qualify as a `good Soldier.’”

Nearly 20 years ago, an Army lawyer warned that the good-soldier defense could let the defendant’s attorneys “smother the fact-finder with good soldier evidence regardless of the charges.” And it tended to favor a certain kind of soldier, he noted: “The more senior the accused, the more likely the defense can craft some version of the good soldier defense.”

Four years later, the Army’s top enlisted soldier, Sergeant Major of the Army Gene McKinney, employed the good-soldier defense after he had been charged with sexually harassing women who worked with him. “McKinney’s adroit use of his past service as a `good soldier’ was widely credited for his acquittal on all charges of sexual misconduct, in spite of damning testimony from six servicewomen about his alleged harassment,” Elizabeth Hillman, now the president of the National Institute of Military Justice, wrote in 1999. “The good soldier defense advances the perception that one of the privileges of high rank and long service is immunity from conviction at court-martial,” said Hillman, now a professor of law and dean at the Hastings College of Law at the University of California.

The proposed change now making its way through Congress “modifies the Military Rules of Evidence to prevent defendants from using good military character unless it is directly relevant to an element of the crime for which they are charged,” says Senator Claire McCaskill, one of its champions (good military character also could still be cited at a court-martial’s sentencing phase, in hopes of reducing the severity of punishment).

The change is included in both sets of proposed changes to the military-justice system following several sexual-assault cases earlier this year that some suggested short-changed female accusers. A more comprehensive proposal, advocated by Senator Kirsten Gillibrand, D-N.Y., would also remove decisions to prosecute such cases from the accused’s chain of command.

“In this politically charged environment, the proposal to prevent a service member from using good reputation in the service as evidence of good character may well become law,” argues Captain Zachary Spilman, a Marine lawyer at Camp Lejeune, N.C. “But I believe that if it does, then it will not stay law for long.” On Sunday, he said that he thinks any such bar “would lead to a Constitutional showdown where I think the prohibition would lose.” His views, he adds, are his, and don’t necessarily reflect those of the Pentagon, corps or the U.S. government. “I believe that the defense of good military character, and of good character in general, is dyed deep into the fabric of military law,” he says. “Prohibiting this evidence at a court-martial would deny service members the right to present a defense.”

Eugene Fidell, who teaches military law at Yale University, disagrees, and believes such a change is overdue. “How is it relevant that a soldier accused of some violent crime happens to have been a terrific master sergeant?” he explains. “That’s putting a thumb on the scale that shouldn’t be there.”