In a decision that is going to get the hirsute harpies of the SJW brigade wound up and emoting on their Tumblr pages, a unanimous opinion by the U.S. Court of Appeals for the Armed Forces, basically the Supreme Court of non-capital military justice cases, has thrown out a rape conviction of a member of the Coast Guard for lots of great reasons.
Appellant was charged with forcible rape of Seaman S in Puerto Vallarta, Mexico. Both were crewmembers in USCGC MIDGETT (WHEC-726). Both were staying in a hotel, in separate rooms, during a September 2010 port call in Puerto Vallarta. Both spent much of their time at the hotel swimming pool and drinking alcohol. The incident took place during the night in Appellant’s hotel room, after both had consumed a large quantity of alcohol. Seaman S reported the incident to Coast Guard Investigative Service (CGIS) on 18 April 2011.
There was a lot of alcohol involved in the case. The complainant’s story did not match the events of other witnesses. The investigating officer–this officer carried out an Article 32 investigation which is the equivalent of a grand jury in the military–recommended the case be dismissed for lack of evidence. But this played out in 2011-2012 when the Obama administration was pushing, then reacting to, a narrative of endemic sexual violence in the military. The Coast Guard reacted to this in the way institutions react to outside stimulus. To show that they were down with the struggle, the admiral who, in military parlance, was the general court-martial convening authority exercised his right to override the investigating officer’s recommendation and directed a general court-martial be convened to try Boatswain’s Mate 2nd Class John C. Riesbeck on “two specifications of making a false official statement, in violation of Article 107, Uniform Code of Military Justice (UCMJ); one specification of rape, in violation of Article 120, UCMJ; and one specification of orally communicating indecent language, in violation of Article 134, UCMJ.”
To understand what all happened let’s take a short side trip into the world of military justice. The military justice system, as defined by the Manual for Courts-Martial and the Uniform Code of Military Justice, exists to preserve good order and discipline in the military. If you can wade through it, Herman Melville’s Billy Budd shows how the maintenance of order and discipline sometimes requires what an outsider would see as a manifestly unjust outcome.
Because rape is a felony and because it could result in up to a life sentence, a general court-martial was convened. For all the illiterate mewling about “command influence” because of Trump tweeting about Bowe Bergdahl, what happens next shows what unlawful command influence looks like. Already the commanding admiral has bowed to political and public pressure by ordering a court-martial despite the Article 32 recommendation. Then the court-martial panel is selected. The way this is done in the military is that the convening authority is given a list of persons available for service on a panel. This differs from the civilian procedure of directing people to show up for voir dire. It is necessary because all members of the panel must outrank the defendant and they must all be commissioned officers. An enlisted man can demand enlisted members be included in the panel but bitter experience has shown that you are better off making your case to a guy two or three years out of college than you are trying to con a senior noncommissioned officer–it will be noted that Riesbeck did demand enlisted member for his panel. And they have to be available, which means, in this case, their ships can’t be at sea or away from the port.
A general court-martial panel has to have at least five members for a regular case and at least twelve for a capital case but the number chosen is largely up to the convening authority. Here is a key departure from civilian procedure. Neither the prosecution nor the defense gets any challenges for any reason other than cause. This means the list the convening authority selects is the actual court-martial panel in 99.9999% of all cases.
The officer pool available for duty on the court-martial was 80% male. The enlisted pool was 87% male. The list of potential court-martial members was reduced to five women and two men to hear the case. Four of the women had served as advocates for victims of sexual assault.
Even so, the court seemed unimpressed. Riesbeck was found guilty and sentenced to confinement for three months, reduction to E-2, and a bad-conduct discharge. Even though the fact that Riesbeck served a single day in confinement reduced him in rank to E-1, the panel did not do so. There was no dishonorable discharge. There was no forfeiture of pay and allowances. The admiral convening the court-martial could have done this much damage (less the BCD) in a 10 minute hearing in his office.
The whole proceeding has an air of the command trying to make an example of this guy so they could go to their political masters and say, “we’re totally down with your pet program, see what we did for you.”
Riesbeck appealed. He was essentially ignored by everyone until it hit the U.S. Court of Appeals for the Armed Forces. That court found that the selection of court-martial members was improper, that there was unlawful command influence used to try to assure a guilty verdict, and that the command had exhibited prejudice in its actions, both in command actions and in rulings by the trial judge, against Riesbeck. They tossed the verdict. They did so “with prejudice,” which means he can’t be retried. (The opinion is deliciously scathing.)
We have entered into an age where the “believe women” nonsense has reached hurricane force. The underlying implication of this is that women always tell the truth and men are liars and predators. This is like the “occult child abuse” scare in the 80s where victims have to be believed in order to validate their victimhood.
I don’t know how one goes about making him whole. He’s served time in confinement. He had his career destroyed. He’s probably been forced to be registered as a sex offender for the past five years. In a just world, everyone who touched this case–the admiral, his staff judge advocate, the trial judge, a couple of appellate panels, the prosecutors, and the court-martial members–would be called to judicial account for their actions.