Citation

Bozarth G. UMKC law review 2016; 84: 1003-1032.

Copyright

(Copyright © 2016, University of Missouri, Kansas City)

DOI

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PMID

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Abstract

The military and the university are facing scrutiny concerning sexual assaults. This Comment discusses the origins and the current state of the prosecution of sexual assault, due process concerns, and institutional leaders' influence on these procedures, and the newest proposals to change these procedures. The Comment warns against "undue administration influence," which occurs when university administrators use their power in a way that seems to violate the due process rights. While prosecutorial discretion has been nearly eliminated in both systems, the administrator's role and power is expanding while the convening authority's role and power is shrinking. While the convening authority's power in the military setting is balanced against a system with stringent due process protections, fewer protections exist in the university setting. Just as the unrestrained powers of the convening authority led to a lack of respect for the military justice system during World War II, the administration's power will undermine the legitimacy of campus sexual assault adjudication. Likewise, just as Congress outlawed illegal command influence in the Uniform Code of Military Justice (UCMJ), if administrators are to remain involved, they should submit to similar restrictions.


When comparing a new military recruit to a college freshman, two very different sets of stereotypes come to mind. 1 Most people rightly imagine that the new recruit's life is regimented. The recruit wears a uniform at all times. She learns to stand at attention and to address the Drill Sergeant with the proper title. She wakes up every morning before dawn to slog through physical training. zzzzMeal time is decided for her, the daily activities are decided for her, and every move she makes is under the watchful eye of a Drill Sergeant who always find a reason why her rifle is not clean or her uniform looks like a "soup sandwich." 2 Many may assume that this person joined the military because she did not have other options, including the financial means to go to college, or because she wanted to gain more practical experience and avoid boring classroom learning.

Most people imagine a very different life for a college freshman. This other eighteen year old is wearing the latest jeans and sneakers. He gets up promptly at 10:00 every morning, because, after all, why would anyone take a class before double digits? He enjoys the new found freedom in living in the dorm room where mom and dad are no longer watching his every move. Professors do not treat students like children, classes do not meet every day, and the attendance policy is not as strict as it was in high school. Perhaps the best...

Language: en