"(U.S. military) Court wrestles with punishing suicide attempts"

[The Bread Guy]

The military’s highest court Tuesday hammered attorneys on both sides of a controversial case involving vexing questions about whether commanders should have authority to court-martial troops who try to commit suicide.

“If suicide is indeed the worst enemy the Armed Forces has in 2012 — in terms of killing soldiers, sailors, airman and Marines — then why should we criminalize it when a guy fails? Seems to me like you’re trying to fit a square peg in a round hole,” said Judge Walter T. Cox III during oral arguments at the Court of Appeals for the Armed Forces.

The court was hearing the appeal of Marine Pvt. Lazzaric Caldwell, who was convicted of “self-injury” after he slit his wrist in a barracks in Okinawa in 2010.

He was convicted under the Uniform Code of Military Justice’s Article 134, known as the General Article, because the judge found his self-injury was prejudicial to good order and discipline and brought discredit upon the service.

At least one judge on the military’s high court agreed with that argument. “You don’t think that the public will think less of the military if people are killing themselves? …There’s literature out there that these things come in waves,” said Judge Margaret Ryan.

Underpinning the case is the question of why the military criminalizes attempted suicide when it does not treat successful suicide as a crime.

“If [Caldwell] had succeeded, like 3,000 service members have in the past decade, he would have been treated like his service was honorable, his family would have received a letter of condolence from the president and his death would have been considered in the line of duty. Because he failed, he was prosecuted,” noted Navy Lt. Michael Hanzel, the military lawyer representing Caldwell ....

Marine Corps Times, 27 Nov 12

 

[FJAG]

Marine Corps Times, 27 Nov 12Underpinning the case is the question of why the military criminalizes attempted suicide when it does not treat successful suicide as a crime.

Its very hard to charge a successful suicide with an offence. An unsuccessful suicide is quite chargeable and the general theory is that the individual who injures or maims himself or any other service member is depriving the Queen of a trained fighting asset. In Canada it is not a "Good or or Discipline" offence but comes under s. 98(c) of the NDA:

"98. Every person who
. . .
(c) wilfully maims or injures himself or any other person who is a member of any of Her Majesty’s Forces or of any forces cooperating therewith, whether at the instance of that person or not, with intent thereby to render himself or that other person unfit for service, or causes himself to be maimed or injured by any person with intent thereby to render himself unfit for service,
is guilty of an offence . . .

I quite frankly don't know if we have charged an unsuccessful suicide with this and how we interpret the "intent to render himself unfit for service". My guess is we haven't.

 

[cupper]

Its very hard to charge a successful suicide with an offence. An unsuccessful suicide is quite chargeable and the general theory is that the individual who injures or maims himself or any other service member is depriving the Queen of a trained fighting asset.

But I think the point that the author (and perhaps the judge) was making was that a member who succeeded in his / her attempt has their death treated the same as any other member who died (non combat related death) during their service period, even though their death was the result of a successful criminal act. They are given all of the honours accorded them without regard to the circumstances behind the death. But there is an obvious double standard should the member fail in their attempt. And that there is an inherent hypocrisy built into the military justice system.

As an aside, what steps are taken to provide treatment for the underlying cause of the suicide attempt while the member is waiting trial and after the trial is completed? And what consideration is given to the member in mitigation?

Finally, it would seem that making a criminal of the member who fails in the attempt would only exacerbate the problems that lead to the suicide attempt in the first place.

 

[Haggis]

I quite frankly don't know if we have charged an unsuccessful suicide with this and how we interpret the "intent to render himself unfit for service". My guess is we haven't.

FJAG, I'm sure the stats exist somewhere.  I have never heard of it, though it was a mess discussion on one of my leadership courses.  The gist of it was that if a member wilfully maims or injures himself it's inferred that, even in part, the intent was to render himself unfit for service.  Secondly, if one would argue that the member injured himself solely to avoid life's problems, then the second order effect of that act would be to render himself unfit for service.  How does the NDA address the Law of Unitended Consequences?

 

[Jimmy_D]

I am not completely sure if this would be the judicial loop hole or not, but if said member tried to commit suicide had a medical diagnosis of an OSI/PTSD. Then said member would already either be temporarily and/or on the way to a permant medical category, which at the time would technically make the member unfit for service at that given time.

If the member was not diagnosed and member has had operational engagement(s), then member should be sent to get medical attention and be diagnosed with OSI/PTSD at that time. Which would mean the member would have been unknowingly unfit for service by staff.

So it nothing has been noted by medical staff, then the judicial side would presume that it was self inflicted and would make it a hard decision to make.

 

[FJAG]

FJAG, I'm sure the stats exist somewhere.  I have never heard of it, though it was a mess discussion on one of my leadership courses.  The gist of it was that if a member wilfully maims or injures himself it's inferred that, even in part, the intent was to render himself unfit for service.  Secondly, if one would argue that the member injured himself solely to avoid life's problems, then the second order effect of that act would be to render himself unfit for service.  How does the NDA address the Law of Unitended Consequences?

Good points and questions Haggis. I've been out of criminal law for some time now and I would probably just be blowing smoke if I tried to give a simple answer to something which several people a whole lot smarter than me have written a number of books about.

Criminal law in general (not just the discipline provisions of the NDA) almost always require an that someone intends to do the act that is prohibited. I think that there is a sliding scale as to the extent to which the consequences of the act are a part of that. In some cases, like in negligence issues, the consequences play a lesser role or none at all. In others, particularly where the statute specifically says that there is "an intent to ... whatever ...",  the intent is less likely to involve "unintended" consequences.

The case here falls into the latter category but I can see valid arguments for each side. I would expect we would never know for sure until a judge and probably an appeal court or two have fully interpreted the phrase.

 

[tomahawk6]

I think that commanders are grasping at straws to deal with the suicide problem in the US military[primarily Army and Marine Corps].Commanders want to deter suicides through the UCMJ when suicide is a medical issue.A cry for help IMO. Clearly a service member that has attempted suicide is a risk not only to himself but others. In that regard rather than punishment I would favor a psychological evaluation to determine treatment options.Separation from the service would be necessary IMO.One side effect of my approach is that any discharge relating to mental health could be a black mark for civilian employment.Its a tough issue.

 

[FJAG]

I think that commanders are grasping at straws to deal with the suicide problem in the US military[primarily Army and Marine Corps].Commanders want to deter suicides through the UCMJ when suicide is a medical issue.A cry for help IMO. Clearly a service member that has attempted suicide is a risk not only to himself but others. In that regard rather than punishment I would favor a psychological evaluation to determine treatment options.Separation from the service would be necessary IMO.One side effect of my approach is that any discharge relating to mental health could be a black mark for civilian employment.Its a tough issue.

I think that's exactly the question that the appeal judge is raising with the lawyers.

I'd be interested in the court's final written reasons.