If Brett Kavanaugh were a Soldier: The Preferral of Court-Martial Charges

Posted by Charles “Brad” Dixon | Dec 12, 2021 | 0 Comments

Over the past several weeks, it has been impossible to look at one's news feed without seeing something about Supreme Court nominee Brett Kavanaugh.  This, of course, has resulted in fiercely defended opinions on Facebook, Twitter, Instagram, you name it.  While I was very familiar with the #MeToo movement, I recently saw a #HimToo movement arising as well.  Over the past eight years, I've never been too publicly opinionated – If the Army wanted me to have an opinion, it would issue me one, or so I was told.  Now, having a few months of civilian life experience under my belt, I'm beginning to learn that I have an opinion or two.  Here's mine with regard to Judge Kavanaugh and the #Me/HimToo movements, and how this can be used as a lesson in military justice.

Every year, on the fourth day of July, we celebrate our nation's independence.  I would speculate that most Americans regard this day as our nation's “birthday” of sorts.  After all, that was the day in 1776 that the Second Continental Congress declared that the then existing 13 colonies were separate and apart from the Kingdom of Great Britain.  The truth, however, is that September 17th is closer to our birthday.  Every year, on September 17th, we celebrate “Constitution Day” because that was the day in 1789 that our Constitution was created.  In the practice of criminal law, we are most familiar with the amendments that later came (1st Amendment freedom of speech, 4th Amendment right against unreasonable searches/seizures, 5th Amendment freedom against self-incrimination, etc.).  However, I think that the first several words of the preamble to the Constitution are worth some reflection with regard to the #MeToo / #HimToo movements.

This beautiful document (the oldest of its kind, by the way) starts with this sentence:  “We the People of the United States, in order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

“Justice” is a word that is often tossed around in the criminal law community, and I have always found it to be a lot like the word “Hooah,” as it has a lot of meanings in various situations.  I am guilty of misusing the term, and you probably are as well.  When I was a prosecutor, if I lost a sexual assault trial, I would say “the victim didn't get justice” or “this wasn't justice.”  I have also heard defense counsel say the same when I obtained a conviction in similar cases.

What we all really meant when we said these things was that we wanted our way.  We wanted to win.  We wanted a particular result.  And when we didn't get it, we felt that “justice” was denied.

That's not justice, folks.  Justice, is a process.  It's not a result.  Justice isn't just for the accused, the victim, the prosecutor, or the defense attorney.  Justice is for “The People.”  By “The People,” I'm referring to the same people to whom the Constitution refers:  every single citizen of the United States of America.  You see, The People do not want to be locked up in a jail cell without proof beyond a reasonable doubt in a court of law.  The People do not want to be victims of crimes and not have an opportunity to be heard on the matter.  The People want to feel safe, from both crimes and false accusations of the same.  The People want Justice.  The People want Due Process of Law.  In other words, folks just want a fair shake.

The visions of justice and fairness become blurrier as emotions are added into the mix.  This is inevitable in a sexual assault case, and I think the best way to explain this is by example:

Let's say that Jane reports that Johnny forcibly raped her one month prior at a party.  She says that they both had several drinks.  She had a boyfriend at the time, and soon before she reported the crime to police, she learned that Johnny was bragging to his friends that he had sex with her at the party.

Now, fast forward to trial.  The prosecutor will likely put on an expert forensic psychologist to testify about common, or counterintuitive, victim behavior.  The expert will testify that victims commonly delay reporting sex crimes due to embarrassment, fear of reprisal, confusion about whether it was really a crime in their own minds, etc.  The prosecutor will argue that it doesn't make sense that Jane would have consented to sex with Johnny because she had a boyfriend at the time, and their relationship, by all accounts, was going great.  The prosecutor will paint the accused as a predator who weakened his prey by getting her drunk and pouncing at exactly the right moment.  He will argue that the accused went on a smear campaign by spreading rumors about Jane's chastity, in an effort to weaken her credibility in case she ever reported.

The Defense, on the other hand, will argue that delayed reporting doesn't make sense.  Why wait a month to report something so heinous?  Expert testimony isn't needed to figure out why the report was delayed – it was because Jane learned that Johnny was telling folks about their consensual sex, and she was afraid that her boyfriend would find out.  So, she made a false allegation in an effort to preserve her relationship with her boyfriend.  Similarly, the Defense will argue that Jane was drunk on the night of the alleged offense, and that she was flirting with the accused, and other folks saw it, in fact.  Buyer's remorse will be the theme of the defense.

Now, Johnny, and all of his family, friends, and supporters, are furious that Jane would make such horrendously false accusations against an innocent man.  How could she?  Johnny just couldn't possibly do something like that.

Jane, and her family, friends, and supporters, will feel equally enraged at Johnny's sexist and egotistical attack of her credibility.  They will hate the defense attorney for his slashing cross examination of her account.

Suddenly, everyone is divided.  They all have very firm beliefs about what happened that night at the party, and nothing could possibly convince them otherwise.  They feel anger, and that anger is a response mechanism to the hurt that they feel inside.

Fortunately, our system is supposed to be an unbiased one, complete with a judge and jury who do not know the parties, their families, or their witnesses.  Both sides have the opportunity to be heard.  The prosecution gets to present its evidence, and the Defense gets to attack it.  At the end of the day, the question is simply “has the prosecution proven that the accused committed the crime beyond a reasonable doubt.”  That means that there is no other reasonable explanation for the evidence, other than the accused's guilt.

In a case such as Johnny and Jane's, if both sides have reasonable explanations for the evidence, then how are we to know what really happened?  And, if we can't determine what really happened, then how can we find that the prosecution proved Johnny's guilt “beyond a reasonable doubt.”  As such, Johnny must be found Not Guilty.

Jane will be furious.  She will feel that justice was denied.  Johnny will be happy at first, but he will soon learn that he now has an arrest on his record for sexual assault, even though he was acquitted at trial.  This will follow him around forever.  Rumors have already spread about him, and he will have a hard time explaining the situation to folks, including employers.  If Johnny were in the Army, his career, without question, would be over.  Eventually, Johnny will feel as if justice was denied too.

We, The People, should be pretty happy, though.  We will have tested the evidence under the scrutiny of a criminal trial, and the prosecution was not able to prove guilt beyond a reasonable doubt.  This means that we did not place an innocent man in a cage unnecessarily.  If we think the accused “may have” done it, that's not enough.  If we think he “probably” did it, that's not enough.  Only when we “know” beyond a reasonable doubt that he did it, can we deprive this citizen of his right to life, liberty, and the pursuit of happiness.  This is what our Constitution guarantees.

So, to the #MeToo posters:  you're right about a lot of things.   To the #HimToo posters:  you're right about a lot of things too.   The problem is that neither of you know for sure what happened on the nights in question because you weren't there.  So, don't categorically jump to conclusions based upon feelings, alone.  Let's remember a little thing called “Due Process.” #ThePeopleToo

Now, turning to Judge Brett Kavanaugh.  Let's remember that this is not is a criminal trial.   This is a Senate hearing as to Kavanaugh's suitability to serve as a Supreme Court Justice.  It's a job interview, of sorts.  Nonetheless, I think The People would want to know whether a Supreme Court Justice has any skeletons in his closet.  I also think that in figuring this out, The People should have a chance to hear the complaining witness's account.  I also think she, as a citizen, should have the right to let the Senate know about her allegations.

I also think that Judge Kavanaugh should have an opportunity to rebut the allegations, and we should not automatically assume that the accusations are true.  There are, without question, some obvious problems with the complaint.  First, this is a heated political debate, not just a social one.  Second, the allegation stems from three decades ago.  That's a problem, especially considering the timing of the reports.  There is no forensic evidence of proof, and there are no corroborating witnesses from the nights in question.  Moreover, we know for a fact that alcohol affects memory, and by all accounts, alcohol was involved in this case.  So, there's a question as to the reliability of the complaining witnesses' memories.

Don't get me wrong.  I'm not saying that it did or did not happen.  I can't because I wasn't there on the nights in question.  I'm just pointing out the potential flaws that need to be examined before jumping to conclusions.

But what if Brett Kavanaugh was a Soldier.  What if he was LTC Kavanaugh.  After all, reports of alcohol related incidents are reported all the time in the military.  So, it's not far fetched to wonder, if Brett Kavanaugh were LTC Kavanaugh in the Army, and this same report was made (assuming he was in the Army at the time of the alleged offense), would court-martial charges be preferred against him?  Well, based on everything above, you would think that we could answer this question with a question:  “Can it be proven beyond a reasonable doubt?”  If so, then he should be court-martialed.  If not, then why would we waste time and tax payer money on a needless prosecution?

Unfortunately, that's not the standard that we use in the Army.  In fact, I would venture to speculate that most commanders could not articulate the meaning of “beyond a reasonable doubt.”  Nonetheless, they are charged with the responsibility of determining whether or not a case goes to trial.  Ordinarily, in the civilian justice system, prosecutors make the determination of whether or not to prosecute.  Under the U.C.M.J., however, commanders make this decision.  That's right.  The commanders who don't know the evidence, the commanders who are not experienced in the practice of law, and the commanders who will not have to try the case – they're the ones who make the call.

So, how do commanders arrive at these critical decisions?  How would LTC Kavanaugh's commander determine whether or not to court-martial him?  Well, he would seek advice from his lawyer, or course.  His lawyer, a Trial Counsel, is likely a Captain.  That Captain answers to a Major (the Chief of Justice).  That Major answers to a Colonel (the Staff Judge Advocate).  That Colonel answers to the Commanding General of the installation or unit.  The Commanding General answers to higher ranking Generals, and those Generals answer to Congress.

As you may know, Congress has taken a particular liking to tightening down on sexual assault in the military.  So, are the Generals concerned about how Congress will view their decision making on sexual assault cases?  And, are the Staff Judge Advocates concerned about keeping their bosses out of hot water?  And, finally, are the Trial Counsel concerned about making the Staff Judge Advocate happy?  You'd better bet your rear they are.

So, when the Trial Counsel advises LTC Kavanaugh's commander on the propriety of prosecuting the case, do you think that there is some political influence?  Absolutely.  I know there is.  I have personally seen it.  As a Special Victims Prosecutor (SVP) there were a number of cases that I flat out refused to prosecute because I did not believe that the accused was guilty.   I also knew several other SVPs who did the same thing.  Suddenly, though, we became labeled as not being tough enough, or being afraid to prosecute hard cases.  The reality, though, was that we were the only folks in the room who were independent enough to call it how we saw it.

I would venture to guess that LTC Kavanaugh would be charged, if this were an Army case.  I would guess that commanders would be too afraid to not charge the case.  I would guess that most Trial Counsel would be too afraid, or not have enough rank on their chest, to advise against it.  They would be afraid to be labeled a “victim blamer” and be shunned with regard to future prosecution jobs in the Army.  Secretly, though, they would discuss their lack of belief in the case, and simply say “this one has to go to trial” to their peers.  Ultimately, tens of thousands of dollars would be spent to prosecute the case, and it would result in an acquittal, because it cannot be proven beyond a reasonable doubt.  The alleged victim will feel as if she was denied justice.  LTC Kavanaugh will still have his freedom, but he will have lost his career.  His commanders, though, will go on to be promoted by Congress to the highest ranks, and the Trial Counsel will be applauded as being a “bull-dog” prosecutor who isn't afraid to take tough cases to trial.  None will lose any sleep because the “system worked.”  The question, though, is whether the system was used properly.

Should LTC Kavanaugh have been investigated, despite the delayed report?  Yes, probably so.  However, if you have read my blog post on the Army's criminal investigation process, you know that he wouldn't stand a chance at getting a fair shake in the investigation stage. Did his commander make the right call with regard to charging him with court-martial charges?  I personally don't think so.

Grain insight into the military's criminal investigation process by reading “The Criminal Investigation – Pulling Back the Curtain.”

So, in the end, I'm okay with Congress investigating a Supreme Court nominee based on allegations that are three decades old, and I'm glad that he has the opportunity to rebut it.  That makes me a little more confident in our justice system at the highest levels.  I'm just glad that Judge Kavanaugh isn't LTC Kavanaugh, because I think that justice would be an objective far more difficult to reach in that situation.

About the Author

Charles “Brad” Dixon

Brad grew up in West Virginia and graduated from the West Virginia College of Law in 2009. He went on serve as an Army JAG Officer, and spent the large majority of his career in the courtroom. Brad served as a general crimes prosecutor, special victims prosecutor, criminal defense counsel, and wa...


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