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Sixty years after Congress created the UCMJ to protect accused servicemembers from abusive and arbitrary punishment, a significant faction in Congress now believes it must be almost completely dismantled and restructured because is is not being used aggressively enough. Multiple federal organizations and a fair number of outside parties consider the notion of due process in student disciplinary hearings, the result of courage in the civil rights era, as an obstacle to be overcome or circumvented in the name of “accountability.” The federal government has used its formidable authority to shape institutional responses to sexual assault, but the aggressive rush to “fix” the problem subordinates notions of due process, truth-seeking, and even the presumption of innocence. Fueled by an underlying assumption that too few perpetrators are sufficiently punished, the poignant and emotionally-charged environment of sexual assault threatens otherwise broadly accepted principles of justice. And in that setting, it is difficult for anyone in a position of both power and publicity to argue for policies that will be seen as making it harder to punish rapists. Nonetheless, the “obligation to govern impartially is as compelling as [the] obligation to govern at all.”[1]
MAJOR ROBERT E. MURDOUGH, BARRACKS, DORMITORIES, AND CAPITOL HILL: FINDING JUSTICE IN THE DIVERGENT POLITICS OF MILITARY AND COLLEGE SEXUAL ASSAULT. 223 MIL. L. REV. 233 (2015).
[1] Berger v. United States, 295 U.S. 78, 88 (1935).