Capt. Merle Wilberding arguing before the Army Court of Military Review on Dec. 4, 1972. The photo is taken from an archived video of a CBS News national broadcast that evening.
Capt. Merle Wilberding arguing before the Army Court of Military Review on Dec. 4, 1972. The photo is taken from an archived video of a CBS News national broadcast that evening.
May 20, 2013

Pete Seeger's refrain from "Where Have All the Flowers Gone," comes back to me, over and over, like a broken record. When will the military ever learn that sexual assault in the military is a very serious crime that is systemic and dangerous to our children and grandchildren.

Three recent criminal cases reveal outrageous conduct by the very military leaders that should be protecting victims of sexual assault. Just a couple of weeks ago, Lt. Col Jeffrey Krusinski, the chief of the Air Force Sexual Assault Prevention and Response Program, was arrested for groping a woman in a parking lot in Arlington, Va.

This past March, Lt. Gen. Craig Franklin, the convening authority of Aviano Air Base in Italy, set aside the court-martial conviction of Lt. Col. James Wilkerson for sexual assault allegedly because he believed the accused over the victim, even though he did not sit on the court-martial panel, and even though in all likelihood he was not in the courtroom to hear the witnesses.

Then at Vandenberg Air Force Base in 2011, Lt. Gen. Susan Helms set aside Captain Herrera's court-martial conviction for aggravated sexual assault. That action has held up her presidential appointment to be vice commander of the Air Force Space Command.

These cases have rightfully outraged Congress and the public, for they destroy the credibility of those in the military who claim that they are doing everything they can to prevent sexual assaults and protect the victims. If the brass at the top of the military does not respect the rights of women, they can never expect the boots on the ground to respect the rights of women.

Sexual assaults have become epidemic in the military. The published reports show that over 3,000 sexual assaults were reported by members of the military in 2012, but the great majority of sexual assaults go unreported; the number of unreported cases is estimated to be more than 25,000. There are many reasons why sexual assaults are not reported, including embarrassment, fear of reprisal and harassment from within the military, and an ever-increasing fear that victims cannot get justice within the military system.

This issue became personal to me when I was asked to represent Mary Lauterbach, the mother of Marine Maria Lauterbach, who reported a sexual assault by Cpl. Cesar Laurean. Maria then suffered months of taunts and torments from other military personnel before she was savagely murdered by Laurean and buried in a fire pit in his own backyard.

Mary Lauterbach became the voice of Maria, and together we went to Congress and testified before various committees to increase the protection and rehabilitation of victims and to push for ways to expand the reporting of sexual assaults and increase the prosecutions. With broad bipartisan support, we had some success in getting a number of changes inserted into the Uniform Code of Military Justice, changes such as facilitating a base transfer by a victim, appointing counsel for a victim, and establishing that conversations between a victim and her victim advocate were privileged communications and could not be introduced into evidence by the accused.

Because of military reluctance the changes made were not as effective as we had hoped.

But those changes did not stem the tide of sexual assaults in the military, primarily because there is a systemic culture in the military that condemns sexual assault from the podium, but fails to practice it in the field. Indeed, when sexual assaults do occur at military bases, all too often the prevailing theory seems to be: "Well, we have a war to fight. Whatever happened last night was last night. Get over it, and let's get back to fighting the war."

It is that culture that encourages marginalization of the victim. It is that culture that makes the victim feel like she is the accused if she reports an assault. It is that culture that breaks down the spirit of the victim. And, sadly, it is that culture that transforms the assailant into the victim.

That attitude could also explain the action of two three-star generals who each reviewed a case in which a military officer was convicted by a panel of his peers, a panel of six officers who were convinced beyond a reasonable doubt that this officer had committed a sexual assault.

Yet in each case the reviewing three-star general concluded that the convicted officer should have his conviction set aside and he should go free. In each case the reviewing general had the authority under Article 60 of the Uniform Code of Military Justice to do what he had done, but not the wisdom to see the effect it would have on the sexual assault problem in the military.

Those cases outraged Congress, and I expect the authority of the convening authority will be drastically changed, and it should be. Congressman Mike Turner, R-Ohio, and Congresswoman Niki Tsongas, D-Mass., introduced the BE SAFE ACT as HB 1867. This legislation would severely limit the ability of the convening authority's unfettered discretion by removing his ability to set aside convictions and, in the case of serious sexual assault crimes would require at a minimum a dismissal or a dishonorable discharge.

The long culture and tradition in the military is that the convening authority is the commander and that his power to prosecute or not prosecute is a part of his ability to command his troops. All too long the problem of sexual assault has been viewed as a matter of discipline but the real answer is that sexual assaults are crimes. And these crimes should be prosecuted as part of an independent military judiciary.

The movement toward an independent judiciary has been continuing for more than 40 years. The 1968 Military Justice Act took the bold step at the time to remove the legal officer who presided over courts-martial and replaced him with a military judge. Military judges were taken out of the chain of command of the convening authority and instead began to report directly to the head of the military judiciary in the Pentagon.

The BE SAFE ACT pushes that prosecution pendulum toward an independent judicial system. The commander - whether he (or she) is the commander of a unit or a commander of an entire military base - should be preparing troops for combat. But when crimes occur, the prosecution of those crimes should be done as part of a judicial system, not as part of a disciplinary system.

Without a significant change in our military culture, we cannot expect America's families to encourage or even permit their daughters to join the military. Without a significant change in our military culture, we cannot believe that our government is protecting our next "finest generation." Instead, we will be staring at our fate, wondering when will they ever learn? When will they ever learn?

(Editor's Note: Merle Wilberding has practiced law for more than 40 years. He is a 1962 graduate of St. Bernard High School in Breda. He then went on to graduate from St. Mary's University (Minnesota) and the University of Notre Dame School of Law, with additional master's degrees from George Washington University (tax), the University of Wisconsin-Milwaukee (Library Science) and the University of Dayton (MBA). During the Vietnam War he served four years as a captain in the U.S. Army JAG Corps, representing the U.S. Government in the appeals of courts-marital convictions, including two of the most famous cases in military history: the "Presidio Mutiny" case and the "Lt. Calley - My Lai Massacre" case. Wilberding currently serves as a senior partner at Coolidge Wall Co., LPA, a 35-person business law firm in Dayton, Ohio.)