By Michael Hartwell

MediaNews

WASHINGTON -- Military defense lawyers are using words President Barack Obama spoke against sexual assault in the military to dismiss charges against those accused of sexual assault, but U.S. Rep. Niki Tsongas, D-Lowell, said there are bigger problems to address.

During a May 7 news conference Obama made the following comment about sexual assault in the military:

"The bottom line is: I have no tolerance for this ... and I expect consequences. So I don't just want more speeches or awareness programs or training but ultimately folks look the other way. If we find out somebody's engaging in this, they've got to be held accountable -- prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period. It's not acceptable."

The president is the commander in chief of the of the military, and military defense attorneys are saying that his words amount to an "unlawful command influence" and could be seen as instructions to judges and influence sentencing in military courts.

The New York Times noted several sexual-assault cases that have been complicated by this argument, including the trial of an Army officer in South Carolina in which charges were dismissed. A Navy judge in Hawaii ruled that two sailors accused of sexual assault could not be discharged if found guilty because of command influence from Obama and other military leaders. Additional motions to dismiss have been made in other cases, such as the one against Army Brig.


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Gen. Jeffrey Sinclair, who is accused of sexually assaulting a female officer with whom he previously had an affair.

"I think that the president was simply highlighting that this is a serious crime and it has to be dealt with in a serious manner," said Tsongas, who is a member of the House Armed Services Committee and has introduced several bills intended to combat sexual assault in the military.

Tsongas said she can understand how defense attorneys will use any defense strategy available to them to dismiss charges.

When asked if the president deserves any blame for the new difficulties in prosecuting and punishing military sexual-assault cases, Tsongas repeated that the president was saying that members of the armed services who commit sexual assault need to be held accountable for their crimes. She said she was glad the president has taken an interest in the matter.

A Pentagon survey estimated that 26,000 men and women in the military were sexually assaulted last year. Tsongas said she first became aware of the issue while hearing congressional testimonies on the matter.

She couldn't believe how big the problem was and ended up asking a military nurse she encountered if it were true. The woman said it had never happened to her, but she had heard plenty of stories and kept a hidden knife with her for protection while she worked.

Tsongas said the nurse was more afraid of American troops than the enemy.

It's not just a women's issue, Tsongas was quick to point out. The Pentagon reports that 53 percent of the victims are men, mostly from other men. Women make up 14 percent of the armed services and are proportionally more likely to be targeted.

"There are many issues that have to be addressed," said Tsongas. "No. 1 is how we prevent these terrible crimes."

Other concerns are how the command structure deals with reported cases, how service members can report sexual assaults without facing retaliation from superior officers and how the Department of Veterans Affairs deals with survivors.

Tsongas is working on establishing an independent review panel to evaluate the military's structure and suggest changes. She's also working to get new language in the next defense bill that would make dishonorable discharges mandatory when someone is found guilty of sexual assault.

"The military is a profession," she said, "People are entering it prepared to give their lives. The last thing anyone should expect is harm from their own."

When asked if she is frustrated that some of the cases that have gone to trial have now been dismissed because of the unlawful command influence angle, she said she's more concerned that military structure is discouraging people from reporting them in the first place. 

"The instances of cases coming forward are too few," said Tsongas.

Leominster trial attorney John M. Dombrowski said the chances of the president's remarks affecting sexual-assault cases in the civilian trial court system are "remote."

"I don't think it's going to make any difference whatsoever," said Dombrowski.

"It's probably something the president shouldn't be commenting on. It's not something within his jurisdiction," he added.

Dombrowski said under the separation of powers of the three branches of government, federal judges are appointed so they can make decisions without the influence of the executive branch.

Follow Michael Hartwell at facebook.com/michaelhartwell or on Twitter @sehartwell.