Decision to wipe clean the conviction of air force commander will be reviewed by the Pentagon, US defense secretary says
A victim of military sexual assault whose attacker's conviction was wiped clean by his US air force commander has said she is "shocked and scared" by the decision, in her first detailed comments since the decision.
The woman, a physician's assistant, was sexually assaulted by Lt Colonel James Wilkerson, 44, the 31st Fighter Wing inspector general, as she lay sleeping, a military jury concluded in November.
But last month Lt General Craig Franklin, commander of the Third Air Force based at Ramstein in Germany, exercised his discretion under the Uniform Code on Military Justice and concluded that the entire body of evidence was insufficient to meet the burden of proof beyond a reasonable doubt. As the "convening authority", Franklin, who did not interview the victim, was not required to provide further explanation for his ruling and his disposition is final.
The decision to dismiss charges against a fighter pilot described by officials as an "air-force superstar" has come under mounting criticism from lobby groups and lawmakers.
On Wednesday, the Senate Armed Services Committee will hold a hearing on military sexual abuse, amid growing concern over the scale of the problem.
A statement from the victim in this case, a physician's assistant, will be read to the committee on her behalf by Protect Our Defenders (POD), a support group for victims of military sexual assault.
In her testimony she says she had endured "public humiliation" and was relieved when the trial was over. She said: "The actions taken by General Franklin are shocking and disappointing. Why bother to put the investigators, prosecutors, judge, jury and me through this if one person can set justice aside, with the swipe of a pen. I am 49 years old. I'm pretty together, but if it was this hard on me, what's in store for a young airman? I did the right thing. I was sexually assaulted, and I reported it."
The victim said: "[And now] General Franklin has made sure that his decision cannot be changed. What really scares me is that [the perpetrator] will remain in a position of military leadership. Really? Leadership?"
On Monday night, Chuck Hagel, the new defence secretary, weighed into the case, directing a Pentagon review of the ruling to determine whether changes are needed in the way sexual abuse cases are handled.
In a letter to two Democratic senators – Barbara Boxer of California and Jeanne Shaheen of New Hampshire – who had demanded he look into the case, Hagel said that while Franklin's ruling cannot be overturned, he had asked Pentagon lawyers and the secretary of the air force to review the way he decided the case. He has also asked them to determine whether changes need to be made to the UCMJ.
At the end of a week-long court martial, in which Wilkerson did not testify, he was found guilty of aggravated sexual assault and sentenced to a year in jail, with dismissal from the air force and forfeiture of all pay and allowances.
At sentencing, prosecutor Captain Ben Beliles said that Wilkerson had shown striking hubris and recklessness by assaulting the woman with his wife and nine-year-old son sleeping under the same roof. He noted that Wilkerson expressed no remorse and urged the jury to imprison him for five years.
The case has garnered national attention because it represents a "poster case" for a military justice system that critics say punishes victims and excuses perpetrators.
It comes after promises by senior military figures to treat sexual assault seriously, prompted by a sex abuse scandal at Lackland air force base.
Fifty-nine victims have come forward in the continuing air force investigation there, while 32 drill sergeants and training instructors have been disciplined on charges ranging from rape to unprofessional relationships, according to the Air Education and Training Command.
Wilkerson's case has now caused the air force such embarrassment that it has scrambled to find a face-saving solution. According to Stars and Stripes, the fighter pilot has been taken off the promotion lists.
Susan Burke, an attorney who has filed lawsuits on behalf of dozens of victims of military rape or sexual assault, told the Guardian that overturning a sexual abuse conviction "was not an aberration. We see it time and time again."
"It is nonsensical. They invest power in one person yet go through the charade of a military trial with a jury. It sends a loud and clear message to military personnel that there is no justice."
Burke called for an amendment to the UCMJ, something that would require legislation, to remove the unfettered power of a single individual in the military.
She cited the Department of Defense's own data, which showed that more than 80% of sex crimes go unreported.
Groups supporting victims of military sexual assault have urged sweeping reforms, similar to those introduced in the UK, Canada and Australia, that have transformed internal military judicial proceedings by transferring authority to independent civilian personnel.
At a press conference on Tuesday, Nancy Parrish, president of POD, said: "The culture of victim blaming while failing to punish the perpetrator must end.
"General Franklin's decision was contrary to the recommendations of his legal adviser. His refusal to explain his actions sends a strong message: the victim is a liar, the judge was wrong, the prosecutors unethical, and the jury [selected by Franklin] incompetent."
Parrish said she was disappointed that Franklin's superior officer, General Philip Breedlove, commander of US air forces in Europe, had reinforced the message by supporting Franklin.
Breedlove said he sympathised with the "burden" that the UCMJ placed on Franklin as a court-martial convening authority. In a recent interview, he said: "I've been there. I have been in his shoes … I have faith in this commander that he put a lot of work into that decision."
Representative Jackie Speier, a California Democrat and a member of the House Armed Services Committee, said she will introduce a bill on Tuesday that would strip military commanders of their power to overturn legal decisions or lessen sentences handed down by judges and juries at courts martial.