Judge Cautious as US Jockeys to Nix Military-Assault Case

     ALEXANDRIA, Va. (CN) — The attorney for veterans contesting how the U.S. military handles sexual-assault cases pleaded with a federal judge at a court hearing to advance their case.
     “I’m asking you to say to the Department of Defense, which oversees all of the military, that they need to issue a directive where anyone who is accused of being a rapist is not allowed to serve as a judge in a rape case,” attorney Susan Burke told the court.
     U.S. District Judge Gerald Bruce Lee convened the Friday hearing in Alexandria to determine jurisdiction.
     In a motion to dismiss filed this past July, the Defense Department argued that Burke’s client “improperly seek to usurp powers reserved to the political branches under the Constitution by asking this court to rewrite the Uniform Code of Military Justice, a statute duly enacted by Congress, based on plaintiffs’ policy views.”
     Burke represents four U.S. military veterans led by Army Lt. Celina Baldwin who claim that the DoD offered them no justice when it handled their formal complaints alleging assault by fellow soldiers.
     Showing sympathy for the veterans at Friday’s hearing, Judge Lee told the court about his wife, sister and granddaughter.
     Openly condemning the treatment that the plaintiffs claimed to have endured, Lee said he would “of course want [the women in his family] protected from these things as well.”
     After a quiet moment, the judge asked the veterans’ attorney a question.
     “Would I be the first judge in America to do this?” he asked.
     “To protect the due-process rights of women in the military, yes,” Burke said. “And if you had to step in front of the appellate courts, they will follow you.”
     Lee informed the court Friday that he will issue his ruling in two weeks to further study “the novelty and complexity of this case.”
     Baldwin applauded the judge after the hearing for weighing the stakes so carefully.
     “Knowing what [Judge Lee] will have to go against, and what has been done so far, I just wanted him to look at me and know that I understand what it is to go against the crowd,” Baldwin said in a phone interview Sunday.
     The judge put the question of jurisdiction to the government’s attorney directly at Friday’s hearing.
     “Are you telling me that my decision here would be worthless?” Lee asked, to laughter in the court.
     “Yes,” Assistant U.S. Attorney David Moskowitz responded. “Congress is the only body which can answer the question of who is considered a convening authority. It may be a political question over who presides [in a military hearing], but it has always been commanders who act as an authority in these matters. However, it is ultimately up to Congress to argue these matters.”
     In addition to contending that the veterans have lobbed an overly broad challenge and lack standing, Moskowitz called the relief they seek “speculative.”
     “The plaintiffs’ request for an injunction also assumes that future incidents like this will occur, and that is not possible to determine,” Moskowitz said.
     Burke meanwhile denied this characterization when Lee asked her to “speak to the nature of a prospective occurrence.”
     “It’s already reoccurring,” the Baltimore-based attorney said. “Ms. Baldwin knows as she sits here today, the department will continue to assign adjudicator roles to those who have assaulted other women before.”
     The attorney argued that their claim is in fact a narrow one — saying her clients are not looking for the court to diminish the military’s legal jurisdiction or even its investigations. They want only that Lee offer a first-of-its-kind ruling that could ensure future compliance by the military with equal-protection laws.
     Baldwin echoed this sentiment in the phone interview.
     “I would like for the Army to hold rapists accountable,” said Baldwin, a graduate of West Point and resident of Florida. “Is that too much to ask? To prevent [rapists] from being in leadership positions where they have the potential to make a decision on other cases like this?”
     At Friday’s hearing, Baldwin’s attorney asked the court to rely on precedent set in Davis v. Poserman, in which congressional staffers were found to deserve the same protection laws that apply to private-sector employees.
     “Misogyny happens in civil and military settings,” Burke said. “You’re not intruding on the military or telling them how to run their army or the navy or any branch. You’re dealing with something common to the human experience.”
     “In the Davis ruling, a congressional staffer was not forced to be subject to an atmosphere of sexual harassment,” Burke added.
     Burke said advancing the case to discovery would allow Judge Lee to review all of the information she has compiled about the culture of harassment in the military.
     Baldwin noted in the interview that the two-year battle just to get here has been daunting.
     “It is scary,” said Baldwin, who was deployed to Kuwait when she filed suit last year. “Sometimes you just feel trapped. I wake up, and I have to put on the same uniform they’re wearing every single day. I know what it means to be an Army officer, and West Point graduate, and have all these positive and hopeful and idealistic dreams. But then I look in the mirror, and see I’m wearing the same uniform as all of these people who are given the same praise and respect. Yet I’ve done everything [inside the military] I can, and they’re still telling me to shut up.”
     Looking ahead to the ruling, Baldwin said she will fight on, whatever the outcome.
     “We’re not going to quit, and we’re not going to shut up like they all want us to until something changes,” Baldwin said. “If a small piece of the whole system changes, that’s a step forward.”
     Baldwin’s co-plaintiffs did not attend Friday’s hearing.
     Assistant U.S. Attorney Moskowitz has not returned a phone call or email seeking comment.

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