Going on the Offensive: Legitimacy and Fairness Inside the Military Justice "Trinity" of Interests

Nineteenth Century Prussian military officer and theorist Carl von Clausewitz famously described the nature of war as a “wrestling match,” a “duel,” a “gamble,” and a “pulsation of violence.” Any professional member of the modern Armed Forces, however, knows intimately the truth that war fighting is as much about life at home station — training, rehearsing, preparing, and waiting — as it is about the physical and risky “management of violence” against a gun-wielding enemy. Such a life, working and living in pressurized, close-knit fraternities and communities is, in many ways, alien to civilian lifestyles and expectations just outside the military installation’s front gates. Yet, “pulsations of violence” occur inside these gated communities by service-members in much the same way and for many of the same reasons that crime occurs on the outside — in apartments, college dorm rooms, and city alleyways. Crime — just as much as chow halls, saluting superior-ranking officers, scrub brush-lined firing ranges, mowed parade grounds, and flapping American flags — characterizes the experiences lying upon the backs of professional military soldiers and officers. The toxic effect of crimes on unit cohesion, general discipline, esprit de corps, and military combat preparedness drive the very purpose, scope, and detail of the American military justice system, including the Uniform Code of Military Justice [UCMJ] and its collection of Executive Orders assembled as the Manual for Courts-Martial (including the Military Rules of Evidence and Rules for Courts-Martial). In this world, justice is not merely the adversarial difference between a victim’s harrowing experience and a defendant’s due process rights and presumption of innocence. Rather, military justice is framed by much more. It is framed by the procedural ability of a service member to self-identify as a victim and expect due diligence by law enforcement and command authorities. It is also framed by the opportunity of the accused service member to defend himself vigorously with all the weight of due process the Constitution demands. And, finally, it is framed by the needs of the military command in which this drama plays out, colored by combat exigencies, the discretion and personality of the commander, the effect of the investigation and trial on the unit, the victim, and the accused, and a host of other considerations not commonly accounted for by civilian criminal prosecutions. And so Clausewitz’s other description of war as “a conflict of human interests” seems most suitable at capturing the nature of war holistically — that is, an all-encapsulating sum of those soldiers, both home and abroad, who will fight or have fought and the organizational culture in which both victim and accused reside. It is this “trinity” of interests — victim, accused, military unit and culture — that so marks the military justice system as distinct, foreign, and unfamiliar to many critical observers.There is, perhaps, no other class of crime currently subject to critical review and affecting military preparedness, justice, leader attention, and the institutional soul — and so ripe with a Clausewitzian trinity of conflicting human interests — as sexual assault. This Symposium of the Ohio State Journal of Criminal Law makes a timely detour off the main highway of criminal procedure and law into the less well-known, but perhaps more exotic back-country road that is military justice. For the first time, a civilian law journal will devote its pages, and multiple perspectives, to a critical examination of this specific and pernicious socio-cultural-political crisis affecting nearly every aspect of modern American military life. These articles — written by current and former officer-lawyers with extensive experience teaching and practicing criminal law — touch not only on the convoluted substantive law that seeks to punish those who commit sexual assault, but also on the culture that may enable it, the system dynamics that may fail to mitigate the effects of it, the policies that fail to prevent it, and the external pressures and politics that may obscure and hamper all of the above.