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Published on : Feb 10, 2015

This year’s Defense Authorization Act contains several reforms related to sexual assault laws applied in court martial cases. Congress has taken the long-awaited step of eradicating the importance given to military character evidence given in sexual assault trials, which set the rules of evidence in courts martial as distinct from those in civil courts. This distinction had been hotly debated in legal circle for years, and the bipartisan support for the measure reflected the overwhelming acceptance the regulation already has in the minds of the decisionmakers.

“When I was prosecuting sex crimes in Kansas City courtrooms, defendants couldn’t use their good work record as proof they hadn’t committed a rape,” Sen. Claire McCaskill, one of the measure’s sponsors, stated in an email. “In the military, how good an airman, sailor, soldier or Marine you are has absolutely nothing to do with whether a rape has occurred.”

The now-abolished measure gave courts martial the permission to use military character evidence as a strong supporting argument. This meant that, unlike in civil courts, a soldier’s commendable army record could legally influence the verdict of a case in which he stood as the accused. Service records and testimonials from fellow soldiers could be legally used to make the case that the fact that the accused was a good soldier was proof that s/he wouldn’t commit the act s/he was being accused of.

Sergeant Major of the Army Gene McKinney’s court martial in 1998, on charges of sexually harassing and assaulting six women, was a notorious case where character evidence was used liberally to ameliorate the verdict. 26 character witnesses testified that McKinney was too professional to have committed the acts. Using them as evidence, he was acquitted of the sexual harassment and assault charges and was only convicted of obstruction of justice.

“In military law, character does count, and character alone may be enough to cause reasonable doubt,” Charles Gittins, McKinney’s defense lawyer, had said in his closing argument.