When a 17-year-old girl accused Marine Cpl. John A. Penrod of trying to rape her in Okinawa in 1988, a commanding officer decided Penrod was guilty ofnothing worse than "poor judgment."
The corporal was formally counseled and told to "exhibit better judgment, more in keeping with a Marine of your caliber. . . ."
Eighteen months later, the Marine Corps concluded that Penrod had not takenthe counseling to heart. An Albany, Ga., woman accused him of breaking into her home and raping her. He was allowed to resign from the Marines in lieu of court-martial in 1989.
The final entry in the official record of his case simply states: "Findingsnot reached."
The Marine Corps handling of the two incidents serves as a case study of shortcomings of a military justice system often criticized for failing to dealwith sexual misconduct.
A Dayton Daily News analysis of more than 100,000 records of service personnel charged with sexual assault and child molestation found a military judicial process plagued by sketchy records, levels of secrecy unheard of in the civilian world, and sweeping discretionary powers given to commanders who often opt for lenient treatment of accused sex offenders.
In recent years, congressional hearings, internal Pentagon studies and suchwidely publicized episodes as the "Tailhook" aviators' convention in Las Vegashave focused attention on problems of sexual violence in the armed services.
Military files, however, contain thousands of less visible sexual misconduct allegations, such as those involving Cpl. Penrod.Commander's discretion
"What military justice?" snapped a retired Air Force captain, referring to the way the Marines handled accusations by his daughter that Penrod had attacked her at Camp Courtney in Okinawa, Japan, on the night of April 22, 1988.
At the time, Penrod was a 22-year-old married man and the father of a son whose second birthday was only two days off.
The girl testified at a formal Marine Corps hearing that she and Penrod hadbeen in a group of young people - teen-age civilians and Marines - driving around, drinking beer, generally looking for a good time.
She said Penrod made several unwanted sexual advances toward her and reacted angrily when she rejected him and the beer he tried to get her to drink. One by one, the other males in the group drifted away, until she found herself alone with Penrod.
She said Penrod took her to his room in a base dormitory, forced her insideand threw her onto the bed, causing her to hit her head on a wall.
She said that while she screamed for help, Penrod "got on top of me," but she broke free and ran out of the dormitory. She said he pursued her to an empty guard shack, where they continued to struggle. He tried to kiss her, shesaid, and pulled up her skirt. When he raised his hand as if to strike her, she screamed and attracted the attention of a passing military policeman who rescued her, her testimony shows.
The official response to the account she gave criminal investigators demonstrates the wide discretion given to military commanders when criminal allegations are raised. Under the Uniform Code of Military Justice, the fate of an accused military person rests finally in the hands of his or her commanding officer.
In addition to making the final decision on whether to formally charge an accused member of the military, the commander decides how the charges will be heard.
In a structure that generally mirrors civilian institutions, the military operates several types of courts. They include general courts-martial, which hear felony cases and can hand down life sentences, to non-judicial "Article 15" hearings, where punishments range from reprimand to 30 days' confinement.
The important difference is that the commander - with advice from military lawyers known as judge advocates - decides which of these tribunals will hear a case and set punishment, regardless of the nature of the charges.
A common example involves the crime of "carnal knowledge," the military equivalent of statutory rape, or consensual sex with a person deemed too youngto legally consent. The crime is punishable by sentences of up to 15 years.
Yet, more than 100 of these cases in the Air Force, Navy and Marines since 1988 have been referred to special courts-martial, where sentences cannot exceed six months.
Finally, the commander must approve any punishment before it can be carriedout.A Marine of your caliber
After reading a criminal investigation report on the Okinawa incident, JohnPenrod's commander at Camp Courtney decided that the charges merited nothing more than an appearance at "Office Hours," an Article 15 session.
Penrod's personnel record shows he was reprimanded for "poor judgment in allowing an unauthorized civilian female in the billeting area and allowing a one-on-one confrontation to develop, thereby placing yourself and the Marine Corps in a compromising position."
"The following corrective action is recommended: Exhibit better judgment inthe future, more in keeping with a Marine of your caliber."
There was no further punishment, but Penrod was advised that "failure to take corrective action may result in administrative separation or judicial proceedings."
Two months later, Penrod extended his enlistment in the Marines and was transferred to Albany. In a few months, his performance earned him a "Marine of the Quarter" citation at the southwest Georgia supply center.
Because a military commander is also the employer of those who serve under him, critics say, good job performance sometimes earns unwarranted leniency.
"In most cases, I think this system works pretty well," said the father of the girl who reported being assaulted in Okinawa. "It sounds to me that what you had was a bunch of non-commissioned officers trooping up to (Penrod's commander in Okinawa), telling him, 'He's such a good worker. Why should we deprive ourselves of his services?'
"This is always going to happen in the military. I had three commands in the Air Force, and I had to deal with that kind of pressure nearly every time anybody who was worth a hill of beans was charged with something."
Behind the guarded gates of military installations, there is little public scrutiny when commanders make decisions about the future of persons accused ofcrimes. Such an environment creates an atmosphere for leniency, said Franklin Zimring, a law professor at the University of California at Berkeley and a pioneer researcher in crime and punishment in America.
"A civilian judge has the defendant and the public looking at him," Zimringsaid. "A military commander or military judge is able to make decisions without the glare of publicity. The only person in front of him is the defendant. That produces more clemency."
In addition, Zimring said, if a charge is seen as serious enough to warrantprosecution, military commanders often are under pressure to get rid of the accused, rather than incur the expense of incarceration.
"They don't have a problem with (repeat offenders) in the military because they kick them out," Zimring said. "But how the hell is the city of Atlanta going to 'kick somebody out?' "
Misuse of discretion by commanders can undermine the deterrent effect of military rape laws, notes Madeline Morris, an associate professor of law at Duke University and author of an in-depth study, Rape, War and the Military.
One answer might be to make the entire process "more visible" with better record keeping, she said.
"A careful record-keeping and oversight program both would tend to improve enforcement, simply by increasing the visibility of the handling of cases, andwould assist in identification of any problems in enforcement procedure," she writes.
Last year, Sen. Dennis DeConcini, D-Ariz., introduced a bill to require theDepartment of Defense to install elaborate mechanisms aimed at ensuring thorough investigation and documentation of sex crimes.
Without the law, the military would "perpetuate an institutional culture ofcover-ups of sexual violence against military women," DeConcini, who did not seek re-election last year, said during floor debate on his bill.
Leading the opposition to the bill was Sen. Sam Nunn, D-Ga., then chairman of the Senate Armed Services Committee, who charged that it had such sweeping language that no one could predict its effect. It got only three votes in the Senate.The Monkey Palace
Any records of the Okinawa investigation into charges against Penrod all but disappeared with the exception of brief notations in his personnel file. They remained out of sight until October 1989.
That's when a Georgia woman accused him of raping her after he followed herhome from the Monkey Palace - a now-defunct Albany honky-tonk where caged spider monkeys stared wide-eyed at nightly outbreaks of loud music and poor judgment.
The woman testified at a preliminary hearing that she and her Marine husband had been separated for six months and were in the process of obtainingan "amicable" divorce.
On the night of Sept. 29, 1989, she testified, she wound up a night of bar-hopping with a 1 a.m. visit to the Monkey Palace. She said she added "fouror five" gin-and-tonics to her earlier alcohol consumption and "danced with anybody that didn't look like a creep." She also met Penrod for the first time.
At around 4 a.m., she said, she left and Penrod "sort of followed me out," then followed her home in his car. She said she rejected his requests to come inside, because she had been up since 6 a.m. the previous morning and was "wiped out."
However, she said she accidentally left her keys in the door. Sometime later, she said, she awoke to find him in her bed, "on top of me."
She said that during a struggle he slammed her head "up against the wall," then raped her.
At the hearing, one of the witnesses also testified that Penrod slugged hisown wife that night - leaving a golfball-size swelling on the side of her face- because "he believed she was being too nice to his friends."
Following the hearing, Penrod was formally charged with raping the woman and a variety of other crimes, including breaking and entering, indecent assault and forceable sodomy. He also was charged with assaulting his wife.
Marine investigators also resurrected the Okinawa matter from Penrod's personnel files and charged him with assault with intent to rape, indecent assault and other offenses in connection with that incident. In all, Penrod faced a court-martial on 14 charges and a possible life sentence.
He hired civilian attorney Ralph Scoccimaro of Albany to defend him.
Computer data show that 37 percent of Navy and Marine personnel who are represented by military defense lawyers are acquitted - but 44 percent are acquitted when they hire civilian attorneys.
In addition, the data show that since 1988, about 300 of the military prosecutors assigned to rape and sexual assault cases were trying only their first or second case.
"The prosecutors are absolutely inept and so are the investigators," said Sverre O. Staurset, a Tacoma, Wash., lawyer whose practice includes defending military personnel. He said that in the past 17 years, he has lost only one military case involving allegations of a sex crime.
Navy records show that Scoccimaro was prepared to argue that the sexual encounter between Penrod and the Georgia woman was consensual. The Okinawa incident posed an obstacle to this strategy, however. Evident similarities between the alleged rape in Albany and the alleged assault in Okinawa might lead a military jury to give credence to the Georgia woman's account, Scoccimaro said.
In a motion to have the two cases separated, Scoccimaro argued that inclusion of the Okinawa matter was an effort by military prosecutors to merely bolster the allegations in the Georgia case.
A military judge agreed and separated the cases. The same jury would not hear both.
A few days later, the Marines quietly dropped their prosecution efforts andallowed Penrod to resign.
Scoccimaro defended the service's decision.
"You have to understand: The Marines are like a tribe and when you banish amember from the tribe, it's like you have cut out his heart," said Scoccimaro."This was not a light punishment."
* JEFF NESMITH is a reporter with Cox News Service's Washington Bureau.
Editor's note
All the women identified in this series as sexual assault victims agreed tothe use of their names and, in some cases, photographs. Where victims did not agree to this, their names were withheld to protect their privacy.
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