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Legal Panel Advises Striking Military Adultery Laws

Thursday, 31 May 2001 12:00 AM

The military operates under its own legal system known as the Uniform Code of Military Justice. The National Institute for Military Justice undertook a review of the UCMJ on its 50th anniversary. Peopled by former military lawyers and judges, it delivered its nonbinding report to the Pentagon late Wednesday.

One of its main recommendations is to remove laws barring sodomy and adultery from military law, as they are selectively enforced against unmarried service members.

"[T]he well known fact that most adulterous or sodomical acts committed by consenting and often married (to each other) military personnel are not prosecuted at court-martial creates a powerful perception that prosecution of this sexual behavior is treated in an arbitrary, even vindictive manner," states the report.

It says that since the laws are intended only to prevent behavior that harms unit cohesion and discipline, "virtually all such acts" could be prosecuted under laws against "conduct prejudicial to good order and discipline."

The commission would also limit the power that commanding officers have in convening courts-martial and appointing judges and juries, as well as limiting the collection of evidence and affecting witnesses ability to travel to the court.

"The current practice is an invitation to mischief," states the report, known as the Cox Commission, named after a former military judge who led the study.

"There is no reason to preserve a practice that creates such a strong impression of and opportunity for corruption of the trial process by commanders and staff judge advocates," it states. "Commanding officers' far reaching role" in court-marital "remains the greatest barrier to operating a fair system of criminal justice with the armed forces … able to intervene and affect the outcomes."

The commission says the military's death penalty offers at least three more areas for change.

First, it says that court-appointed military defense lawyers are not experienced enough to adequately defend accused service members facing "the ultimate penalty." It suggest Congress consider establishing a fund to pay civilian lawyers experienced in defending death penalty cases to take military clients.

"The paucity of military death penalty referrals, combined with the diversity of experience that is required of a successful military attorney leave the military legal corps unable to develop the skills and experience necessary to represent both sides properly," states the report.

Second, alone among all U.S. courts that can impose the death penalty, the military does not require all jurors to agree to apply the death penalty. In some cases it requires only five jurors - fewer than half - to agree to the punishment.

"We recommend that judges instruct juries that they may not consider the race of the accused service member of the victims in deciding whether to impose death," the report states.

"It is an anomaly that corrupts the legitimacy of both panel selection and the verdict itself. Because citizens in uniform deserve no less consideration than their civilian peers, the UCMJ should be amended to require 12 members in capital cases," states the report.

Third, the commission notes that the racial makeup of the military's small death row indicates it might be being applied unfairly. Of the six service members sentenced to death, four are black, one is white, and one is a Pacific Islander. All their victims were white.

Finally, the commission suggests that Congress should consider doing away with the peacetime death penalty.

Copyright 2001 by United Press International.

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The military operates under its own legal system known as the Uniform Code of Military Justice. The National Institute for Military Justice undertook a review of the UCMJ on its 50th anniversary. Peopled by former military lawyers and judges, it delivered its nonbinding...
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2001-00-31
Thursday, 31 May 2001 12:00 AM
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