In military courts, both victim and accused deserve justice

Despite the traditional narrative of criminal proceedings as a zero-sum game, in a legal system founded on the principle of blind justice, everyone wins when bias is eradicated. This concept applies not only to mainstream society but also to the military, where for every example of willful blindness toward “good soldiers,” there are comparable instances of unmerited prosecutions rooted in extralegal pressures. The fact that commanders are explicitly authorized to take account of the “military character” of the accused in addition to evidentiary considerations during the charging process boldly invites personal feelings to eclipse objective judgment.

The Naval Academy case is an especially useful illustration of the tendency for bias to cut both ways within the military justice system. In light of revelations concerning the intimidating and invasive questions to which the alleged victim was subjected during the Article 32—or indictment hearing—process, renewed calls for reform have focused on this pre-trial stage of criminal proceedings. Unlike a civilian grand jury, where the prosecution makes its case in the absence of the accused, Article 32 hearings offer the defense an opportunity to confront and cross-examine witnesses; as such, they are more akin to mini-trials than to pared-down vehicles for determining probable cause.

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When victim advocates proposed reining in the Article 32 process to conform to civilian standards, defense attorneys were quick to point out that the added protections it offers the accused are meant to serve as a check against charges unsupported by evidence. At the Naval Academy, for example, the superintendent directed that a court-martial be convened against the recommendation of his own legal advisor, who had presumably determined that the allegations in question could not be proven beyond a reasonable doubt. Because prosecutorial decisions in the military are made by non-legal professionals and can be based on personal or professional biases, defense advocates argue, the accused should have a voice during the indictment process.

Oddly enough, this is the very sentiment that victim advocates consistently express in urging Congress to reform military justice. Like service members accused of crimes, those who report criminal conduct seek first and foremost an impartial assessment in which evidence, rather than personal loyalties, guides prosecutorial decisions. At its core, the Military Justice Improvement Act attempts to institutionalize this model within the armed services, aligning the rights of all parties with those of their civilian counterparts.

Those who defend the status quo, meanwhile, speak dismissively of “decisions based on evidence, rather than the interest in preserving good order and discipline,” a perspective voiced by Navy undersecretary Jo Ann Rooney at her recent Senate confirmation hearing. In indicating that she would nonetheless be open to reforming the Article 32 process, Rooney seems to regard dismantling a corrective against bias as a reasonable alternative to eliminating the underlying bias.

Contrary to popular rhetoric, the goal of military justice reform isn’t simply more prosecutions but, rather, more meritorious prosecutions. Both victims and defendants deserve nothing less.

Natelson is an attorney specializing in the rights of military women. She formerly served as the legal director of the Service Women’s Action Network (SWAN), and she developed and presided over the Veterans and Servicemembers Project at the Urban Justice Center in New York City.