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Former AF chief prosecutor: Let lawyers, not bosses, handle sex crime cases

December 2, 2014 (Photo Credit: Air Force)

Former Air Force chief prosecutor-turned-victims advocate Col. Don Christensen joins a group of bipartisan lawmakers on Capitol Hill this morning to pledge his support for a law that would give attorneys — rather than commanders — the authority to pursue sex crime cases.

Christensen left the military earlier this year to become president of Protect Our Defenders after watching a three-star general overturn the sexual assault conviction of a fighter pilot whom Christensen had successfully prosecuted. Christensen's retirement after 23 years of military service was first reported in a New York Times Magazine story Nov. 24.

In a statement released the same day, Christensen condemned the military criminal justice system, describing how he'd watched up close "the abuse and injustice victims of sexual assault face in the military."

Christensen is on Capitol Hill this morning to call on Congress to back a bill authored by Sen. Kirsten Gillibrand, D-N.Y., that would remove any alleged crime punishable by at least one year in prison from the chain of command.

Gillibrand plans to reintroduce this month the Military Justice Improvement Act as part of the National Defense Authorization Act after the bill fell short of the votes needed for passage in the Senate in March.

"Currently we have a system of justice, unlike any other in the United States, in which a person, who is not a lawyer, and without specialized training or significant experience in military justice or criminal investigations makes these weighty decisions. For in the military, a commander serving as convening authority makes the call on whether a case will be prosecuted, what the charges will be and who sits on the jury," Christensen wrote in prepared remarks for the 10 a.m. press conference.

The outcry over Lt. Gen. Craig Franklin's February 2013 decision to overturn the sexual assault conviction of fellow fighter pilot Lt. Col. James Wilkerson at Aviano Air Base, Italy, "has done nothing to quench the zest for commanders from trying to tilt the scales in favor of the accused," Christensen said in the remarks.

The Air Force ultimately reduced Wilkerson to the rank of major and kicked him out of the service after discovering that nearly a decade earlier he'd fathered a child with another woman while married. Franklin, who came under fire again after refusing to send a separate sexual assault case to trial, retired in January.

The law that allowed convening authorities to overturn sexual assault convictions has since changed. Last year's defense bill also included a host of other reforms, including providing sexual assault victims their own attorneys, making sexual offenses part of a service member's permanent record and requiring civilian review in cases where a prosecutor wants to take a case to trial but a commander doesn't. It is also now a crime to retaliate against victims of sexual assault.

But Christensen said the changes do not go far enough. Military commanders still decide whether to pursue and prosecute sexual assault allegations.

"Commanders continue to try to use their influence from keeping sex offenders from going to trial. In a recent case in England two retired four star generals, including the former Chief of Staff of the United States Air Force wrote letters trying to deny justice for a rape victim based on nothing more than their belief her rapist was a 'nice guy,' " Christensen said. "The reality is commanders cannot solve this cancer because too many of them are enablers."

The former prosecutor compared the current system to a Wal-Mart employee being raped by a fellow worker who is good at his job.

"Now imagine that the police work for the store's corporate headquarters and that the CEO for the store will make the decision on whether the case will be prosecuted," he said. "In making that decision, the CEO will not consult with the local DA. Instead, he will ask his in house counsel whether it is 'in the corporation's best interest' to prosecute a rape allegation that occurred in one of their stores. Imagine that the DA didn't make that decision. Imagine that even if the CEO 'allowed' the DA to prosecute the case that the CEO would tell the DA what the charges would be.

"Imagine that the CEO would tell the DA whether she could call expert witnesses or enter a plea agreement. Imagine if you will that the CEO picked the jury pool for the case and everybody on the jury works for the CEO. And finally imagine that the rapist's co-workers would be allowed to testify about what a great employee the accused is and that the jury would be instructed that being a great employee is enough to raise reasonable doubt. Could that victimized employee have any faith in that system?"

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