Court-Martialing Cadets

• Author: Michael J. Davidson
• Position: B.S., U.S. Military Academy, 1982; J.D., College of William & Mary, 1988; LL.M. (Military Law), The Judge Advocate General's School, 1994
• Pages: 636-673

COURT-MARTIALING CADETS

MICHAEL J. DAVIDSON∗

I. INTRODUCTION

Recently, military criminal jurisdiction involving cadets and

midshipmen of the service academies has been the focus of several media

reports, with most of the reports discussing allegations of sexual

misconduct. To illustrate, in 2006, the United States Coast Guard

Academy saw the first court-martial of one of its cadets in the 130-year

history of that institution.1 Acquitted of rape, the Cadet was convicted of

“extortion, sodomy, indecent assault and other charges.” He was

sentenced to be dismissed from the Coast Guard and to be incarcerated for

six months.2

Even more newsworthy was the court-martial of the United States

Navy Academy’s starting quarterback. Although similarly acquitted of

rape, the Midshipman was convicted of “conduct unbecoming of an officer

for engaging in sexual contact on academy grounds and failing to obey a

lawful order.”3 A second Naval Academy football player was convicted of

sexually assaulting a female midshipman.4

In the wake of these courts-martial, a cadet from the United States

Military Academy at West Point, New York, was convicted of both rape

and attempted rape and sentenced to be incarcerated for eight years.5 In

Copyright © 2008, Michael J. Davidson.

∗ B.S., U.S. Military Academy, 1982; J.D., College of William & Mary, 1988; LL.M.

(Military Law), The Judge Advocate General’s School, 1994; LL.M. (government

procurement law), George Washington University (GWU), 1998; S.J.D., GWU, 2007. The

author is a retired Army officer and currently serves as an attorney for the federal

government. Any opinions in this article are those of the author and do not reflect the

position of any federal agency.

1 Coast Guard Sex Case Leads to Expulsion, Six-Month Sentence, WASH. POST, June 29,

2006, at A15.

2 Id.

3 Nathan Borney, Owens Cleared of Rape Charge, WASH. TIMES, July 21, 2006, at B1.

4 Raymond McCaffrey, Midshipman Guilty In Sex Assault, Cleared In 2nd Case, WASH.

POST, Apr. 10, 2007, at B4. The midshipman was also acquitted of sexual assault of a

second female midshipman. Id.

5 West Point Cadet Found Guilty of Rape, BOSTON.COM, Sept. 29, 2006, available at

http://www.boston.com/news/nation/articles/2006/09/29/west_point_cadet_found_guilty_of_rape?mo.

636 CAPITAL UNIVERSITY LAW REVIEW [36:635

both cases, the victims were “former female cadets.”6 Significantly, the

rape conviction was the first conviction of a cadet for that crime since

women entered the Military Academy in 1976.7

Although recent media events have highlighted the susceptibility of

cadets and midshipman to military criminal justice, these unique members

of the armed forces have long been the object of courts-martial. This

Article will initially focus on the history and development of courts-martial

involving cadets of the United States Military Academy (“West Point”).

However, the scope of the Article will broaden to reflect the enactment of

the Uniform Code of Military Justice (UCMJ) in 1950.8 The UCMJ

codified military law and made it uniformly applicable to the entire armed

forces, including the cadets from the service academies of the Army, Navy,

Air Force and Coast Guard.9

II. HISTORICAL BACKGROUND

The United States Military Academy (USMA) at West Point, New

York, was founded in 1802 during the administration of President Thomas

Jefferson.10 A proponent of the citizen-militia system, Jefferson

6 Id.

7 Id. Apparently, this was not the first incident of a rape committed by a cadet at West

Point. See, e.g., Loritts v. United States, 489 F. Supp. 1030, 1031 (D. Mass. 1980) (noting

that a visiting college co-ed had been “assaulted and raped by an academy cadet”). In 1997,

a West Point cadet was charged with raping a female cadet, though he was acquitted at

court-martial. Jury Acquits West Point Cadet Accused of Rape, THE MESA TRIBUNE, Jan.

25, 1997, at A5.

8 The UCMJ is codified at 10 U.S.C. §§ 801–953 (2000).

9 The UCMJ initially only “provided for court-martial jurisdiction over cadets of the

United States Military and Coast Guard Academies and midshipmen of the United States

Naval Academy. Majors Allan L. Zbar & James D. Mazza, Legal Status of Cadets, 7 A.F.

L. REV. 31 (Nov.–Dec. 1965). The UCMJ was extended to cadets of the Air Force

Academy following its establishment in 1954. Id. Prior to the UCMJ, the Navy was

subject to “the ‘Articles for the Government of the Navy’ . . . traditionally called the ‘Rocks

and Shoals.’” LCDR EDWARD M. BYRNE, MILITARY LAW: A HANDBOOK FOR THE NAV Y

AND MARINE CORPS 7 (1970). The Army followed the Articles of War. Denton v. United

States, 144 Ct. Cl. 840, 844 n.1 (1959).

10 RUSSELL F. WEIGLEY, HISTORY OF THE UNITED STATES ARMY 105 (1967); see also

U.S. MILITARY ACADEMY, BUGLE NOTES 128 (1978) [hereinafter BUGLE NOTE S] (“The

United States Military Academy was established by act of Congress on March 16, 1802.”).

However, cadets were appointed and reported to West Point by September 1801.

THEODORE J. CRACKEL, AN ILLUSTRATED HISTORY OF WEST POINT 77 (1991).

2008] COURT-MARTIALING CADETS 637

recognized the necessity for some form of standing army.11 Further,

Jefferson believed that if a standing army were to be permitted to exist,

then its officer corps should be educated12 and should be able to serve the

nation in times of peace as well as war.13 However, the Jefferson

administration envisioned the creation of USMA as part of a broader

military reform, which included a political component.14 Appointments to

the Academy were made primarily to the sons of political loyalists so that

Jefferson could create an Army led by officers embracing his republican

principles.15 Laudably, Jefferson also hoped to use USMA as a means by

which the less wealthy, and concomitantly less educated, portions of

society could receive an education.16

The Military Peace Establishment Act officially established the United

States Military Academy and created a “corps of engineers” to be stationed

at West Point, which included ten cadets among its ranks.17 These cadets

were required “to do duty in such places, and on such service as the

President of the United States shall direct.”18 The Academy’s initial

affiliation with the Army’s Corps of Engineers “comported with

Jefferson’s concept of an academy of more than military utility.”19

11 WEIGLEY, supra note 10, at 104–05.

12 Id. at 105.

13 Id. at 106. Jefferson’s selection of a scientist, rather than a professional soldier, as

West Point’s first Superintendent reflects Jefferson’s emphasis on developing the “scientific

aspects of the West Point program,” rather than an exclusive focus on the martial arts. Id.

14 CRACKEL, supra note 10, at 74.

15 As Crackel notes,

after the new administration had come into power, ‘appointments to

military office were made from families of prominent Democrats

[Jeffersonian Republicans] . . . .’ Drawn from Republican families and

trained under officers carefully selected for the task, these young men,

it was hoped, would form an officer corps that would be thoroughly

attached to the republican principles they were sworn to defend.

Id.

16 Id. at 75. Part of Jefferson’s desires in this area appear to be politically motivated

since the rival Federalist party was generally wealthier and better educated than members of

his own party. Id.

17 7 Op. Att’y. Gen. 323, 323–24 (1855).

18 Id.

19 WEIGLEY, supra note 10, at 106.