Gen. Helms and the Senator's 'Hold'
An Air Force commander exercised her discretion in a sexual-assault case. Now her career is being blocked by Sen. Claire McCaskill. Why?
BY JAMES TARANTO
The Wall Street Journal, June 18, 2013
Lt. Gen. Susan Helms is a pioneering woman who finds her career stalled because of a war on men--a political campaign against sexual assault in the military that shows signs of becoming an effort to criminalize male sexuality.
Gen. Helms is a 1980 graduate of the Air Force Academy who became an astronaut in 1990. She was a crewman on four space-shuttle missions and a passenger on two, traveling to the International Space Station and back 5½ months later. Two days after arriving at the station in 2001, she, along with fellow astronaut Jim Voss, conducted history's longest spacewalk--8 hours, 56 minutes--to work on a docking device.
In March, President Obama nominated Gen. Helms to serve as vice commander of the Air Force Space Command. But Sen. Claire McCaskill, a Missouri Democrat who sits on the Armed Services Committee, has placed a "permanent hold" on the nomination.
At issue is the general's decision in February 2012 to grant clemency to an officer under her command. Capt. Matthew Herrera had been convicted by a court-martial of aggravated sexual assault. Ms. McCaskill said earlier this month that the clemency decision "sent a damaging message to survivors of sexual assault who are seeking justice in the military justice system."
To describe the accuser in the Herrera case as a "survivor" is more than a little histrionic. The trial was a he-said/she-said dispute between Capt. Herrera and a female second lieutenant about a drunken October 2009 sexual advance in the back seat of a moving car. The accuser testified that she fell asleep, then awoke to find her pants undone and Capt. Herrera touching her genitals. He testified that she was awake, undid her own pants, and responded to his touching by resting her head on his shoulder.
Two other officers were present--the designated driver and a front-seat passenger, both lieutenants--but neither noticed the hanky-panky. Thus on the central questions of initiation and consent, it was her word against his.
On several other disputed points, however, the driver, Lt. Michelle Dickinson, corroborated Capt. Herrera's testimony and contradicted his accuser's.
Capt. Herrera testified that he and the accuser had flirted earlier in the evening; she denied it. Lt. Dickinson agreed with him. The accuser testified that she had told Lt. Dickinson before getting into the car that she found Capt. Herrera "kind of creepy" and didn't want to share the back seat with him; Lt. Dickinson testified that she had said no such thing. And the accuser denied ever resting her head on Capt. Herrera's shoulder (although she acknowledged putting it in his lap). Lt. Dickinson testified that at one point during the trip, she looked back and saw the accuser asleep with her head on Capt. Herrera's shoulder.
In addition, the accuser exchanged text messages with Capt. Herrera after the incident. She initially claimed to have done so only a "couple times" but changed her testimony after logs of the text traffic revealed there were 116 messages, 51 of them sent by her.
Based on all this, Gen. Helms concluded that the defendant was a more reliable witness than the accuser, and that prosecutors had failed to prove beyond a reasonable doubt that Capt. Herrera did not reasonably believe the accuser had consented. He did not escape punishment: Gen. Helms accepted a reduced plea of guilty to an "indecent act." Capt. Herrera was thereby spared the lifelong stigma of being listed on a sex-offender registry--but not of involuntary discharge from the service, which took effect in December.
"Immediately after this incident, there was no indication by any party that a sexual assault had taken place," Gen. Helms wrote in a Feb. 24, 2012, memo explaining her decision. "The time delay between the event and the court-martial was approximately two years, and none of the witnesses, including the accused and the [alleged] victim, knew for at least a year that a court-martial would be convened for it."
In the interim, another servicewoman, Staff Sgt. Jennifer Robinson, had come forward to accuse Capt. Herrera of sexual assault. In her case, the incident had occurred in his bedroom, where she voluntarily accompanied him. The court-martial acquitted him of that charge on the ground that she had consented. (Sgt. Robinson, who has since been promoted to technical sergeant, revealed her identity in a March interview with the Air Force Times.)
It's fair to say that Capt. Herrera seems to have a tendency toward sexual recklessness. Perhaps that makes him unsuitable to serve as an officer in the U.S. Air Force. But his accusers acted recklessly too. The presumption that reckless men are criminals while reckless women are victims makes a mockery of any notion that the sexes are equal.
More important, Sen. McCaskill's blocking of Gen. Helms's nomination makes a mockery of basic principles of justice. As the general observed in her memo: "Capt Herrera's conviction should not rest on [the accuser's] view of her victimization, but on the law and convincing evidence, consistent with the standards afforded any American who finds him/herself on trial for a crime of this severity."
On Friday the House passed a defense bill that would strip commanders of the authority to grant clemency. That would be a mistake. The Herrera case demonstrates that the authority offers crucial protection for the accused.
Military officers and lawmakers alike swear an oath to "support and defend the Constitution of the United States." In the case of Matthew Herrera, Gen. Helms lived up to that commitment. Will Sen. McCaskill?
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