When a Marine colonel was sentenced to 66 months of confinement in 2017 after a court-martial into sexual abuse allegations of their 6-year-old daughter, the Perry family said they thought justice was served.
In addition to his prison sentence, the conviction meant Col. Daniel Wilson would lose his military retirement benefits and have to register as a sex offender upon his release.
In July, though, Wilson’s sexual abuse charge was tossed by a military appeals court using Uniform Code of Military Justice Article 66(c), or factual sufficiency powers. Factual sufficiency allows an appellate court to review the trial record and act and as a final juror on the case, overturning the conviction if it says guilt was not proved beyond a reasonable doubt.
But the Perry family is now calling on Congress to remove from the UCMJ the power, which does not exist in most U.S. civilian courts, so that, as they say, future victims can be protected.
“Article 66 (c) is wrecking the lives of victims who brazenly step out on faith and entrust in our nation’s military justice system to see justice served for the abuse they have endured,” Adrian Perry, mother of the alleged victim, said during a press conference call Friday from Okinawa, Japan. The family has been stationed on the island with husband and father Marine Lt. Col. Brock Perry. Wilson previously had been Brock Perry’s boss, according to a news release.
“This is astounding and our country should be outraged," Adrian Perry said during the call.
The unanimous opinion cited problems with the child victim’s testimony and a lack of other witnesses.
By contrast to the UCMJ power, most civilian courts can only overturn cases on factual sufficiency grounds if the conviction was not rational, a much higher burden of proof than beyond a reasonable doubt, regardless of whether they agree with the verdict.
The military court’s more powerful authority to review harks back to the days when military courts looked very different than those of civilian counterparts, said Geoffrey Corn, veteran of the military justice system and professor of law and presidential research at the South Texas College of Law Houston.
When factual sufficiency was introduced to the UCMJ, Corn said, Congress and the appellate courts were “skeptical” that court-martial process was “sufficiently fair" to the accused and required more checks on the process to ensure that justice was actually done.
Factual sufficiency is hardly ever used to overturn a case, he added, but because of reforms to the court-martial process that help ensure a fair trial for the accused, it is hard to justify keeping factual sufficiency in the UCMJ, Corn said.
Rachel VanLandingham, a law professor at Southwestern Law School, Los Angeles, and former Air Force judge advocate said it was past time factual sufficiency was taken out of the UCMJ.
“It allows these appellate courts to disbelieve witnesses — like in sexual assault cases — they have never seen nor directly heard from,” she said in an email to Marine Corps Times. “It supplants the role of the trier of fact ― jury or judge — and replaces those folks with appellate judges who are reading cold records of trial and allowing their cognitive biases to disbelieve victims juries DID believe.”
Navy Cmdr. Angela Tang from the Navy-Marine Corps Court of Appeals, who authored the opinion that threw out Wilson’s sexual abuse charge, questioned how reliable the trial testimony and prior statement were of the alleged victim, called BP in the opinion.
“We find that BP’s statements were fatally inconsistent and wholly irreconcilable,” the opinion says. “Based on the evidence, we cannot discern how BP contends the appellant touched her, when he did so, or how many times she contends the abuse occurred.”
The alleged victim “was inconsistent in non-trivial ways that cannot solely be attributed to her young age,” the court said in its opinion.
But Adrian Perry said simply reading documents and not listening to testimony caused the judge to misinterpret the genuine testimony of her very young daughter.
“At the newly turned age of 7, she bravely and courageously took the stand in a military court of law, in order to tell the jury members of her sexual abuse in the best possible way she knew how," Adrian Perry said about her daughter.
Wilson remains in the brig in Camp Pendleton, California, awaiting his re-sentencing hearing for six counts of conduct unbecoming an officer and a gentleman and one count of unauthorized absence, which he is still convicted of, according to Maj. Melanie Salinas, spokeswoman with Headquarters Marine Corps.
Wilson’s attorney, Phillip Stackhouse, has not yet replied to requests for comments from Marine Corps Times.
It is normally Military Times policy to not name the family of the victim. In this case, however, the family came forward with a press release and press conference as they try to fight and bring awareness to their situation.