Long before it was assumed that campus sexual assault was an epidemic, or the tentacles of #MeToos of Hollywood emanating outward in all directions, there was a call for the military to end its blight of rape. And the military appeared ready to do whatever it could to convey the impression, if not the fact, that it was dealing with its problem.

Petty Officer Riesbeck was convicted of rape, two charges of making false statements and one charge of communicating indecent language. The jury sentenced him to three months of confinement, a reduction in rank and a bad-conduct discharge. Adm. Zukunft approved the punishment.

The defendant was tried under the Uniform Code of Military Conduct, one peculiar aspect of which is that the military, theoretically at least, abhors something called “command influence.” For obvious reasons, this is an overarching problem in military adjudications, given the hierarchical nature of command, such that a ranking officer could order a subordinate to do something that would influence the outcome. For the most part, the military takes this problem very seriously. But not always.

The nation’s highest military court has thrown out the 2012 rape conviction of a Coast Guard enlisted man because admirals and prosecutors packed the seven-member jury with five women, four of whom held jobs as advocates for victims of sexual assault.

In a 5-0 ruling that could change how the military conducts sex abuse trials, the U.S. Court of Appeals for the Armed Forces unleashed caustic criticism of all involved.

From the Coast Guard commandant down to an appellate court to the original trial judge, the high court said all contributed to a “stain on the military justice system.” The military has been under intense pressure to wipe out sexual harassment and assault, the five civilian judges noted.

About ten percent of the military is female. Is it possible that, by sheer chance, the jury ended up being five of seven women? With four of whom serving as victim’s advocates? It certainly helps when you start by manipulating the jury pool.

The opinion, delivered by Judge Margaret A. Ryan, said the four admirals who played a role in assembling the officer and enlisted jury pool produced an illegal “gender-based court stacking.” She suggested that the admirals’ role amounted to unlawful command influence, which military law analysts see as the enemy of fair trials for service members.

The court ruling said the trial judge “failed to conduct even a rudimentary investigation” into defense attorneys’ complaints of an unfair jury.

It also said the Coast Guard Court of Criminal Appeals failed in its duty to protect against unlawful command influence as it “rationalized the error away as a benign effort to seek inclusiveness.”

Much as “inclusiveness” is a catchword used to evoke images of unicorns prancing on rainbows, it’s no different than any other word when used to abuse a system by loading it with people bent on a pre-determined outcome. Bear in mind, the word can be used just as easily to load a jury with people inclined favorably to the death penalty as it can with female victim’s advocates.

“Yet the error in this case is both so obvious and so egregious that it adversely affected not only Appellant’s right to a fair trial by an impartial panel, but also the essential fairness and integrity of the military justice system,” Judge Ryan and the four other judges wrote.

The integrity of military tribunals is subject to even greater threats than civil juries at a trial conducted by the “least dangerous branch.” Not only is it subject to acceptance of its outcome as legitimate, but capable of overcoming the taint of command influence. Outside of the military, people aren’t quite so inclined to follow orders, though they’re not nearly as disinclined as many would hope.

But was this “benign” effort at “inclusiveness” really prejudicial, in the sense that they were “merely” assuring that a guilty rapist not go unpunished?

Even worse, the high court suggested that the enlisted man never would have been convicted by a more gender-proportionate jury. It said the evidence was so weak that a hearing officer had recommended dismissing the charges. The admiral overseeing the case overruled him.

Was the case against the petty officer that weak? Details of the charges are sparse.

“The Government’s case was weak, primarily based on the testimony of [name redacted], the putative victim, who was unable to remember many of the events surrounding the crime due to alcohol use and whose testimony was controverted by other witnesses at trial,” the opinion read.

It should be noted that this might well have been deemed overwhelming proof of guilt in a Title IX adjudication on campus, where the involvement of any alcohol by the “putative victim” is sufficient to vitiate consent, and where the inability to remember facts is considered evidence of veracity, just as the ability to remember is proof of veracity as well.

And how does one guarantee a conviction when that’s the outcome needed?

“The salient facts paint a clear picture of court stacking based on gender in an atmosphere of external pressure to achieve specific results in sexual assault cases,” the ruling read. “Against that backdrop, purposefully selecting a panel that is seventy percent female, most of whom are victim advocates, from a roster of officers that was only twenty percent female and a pool of enlisted that was only thirteen percent female, smacks of a panel that was ‘hand-picked’ by or for the Government.”

The judges used the word “absurdity” in their assessment of assembling a jury pool of 70 percent women based on inclusiveness. “As a matter of common sense, 70 percent is not statistically or otherwise ‘representative,’” their ruling read.

Notably, this case commenced in 2012.  While the court dismissed the case with prejudice, Coast Guard Petty Officer John Riesbeck could have been earning medals, increasing his rank, and most significantly, serving his country. Instead, he was hung out to dry by his admirals who were happy to sacrifice him to show the military was “fixing” its rape problem.