Military prosecutor likely to appeal army instructor's 'lenient' sexual assault sentence

The judge noted the accused had received positive character references from 17 different witnesses

The army instructor was found guilty last year following a three-day trial of sexually assaulting a female trainee at a military barracks several years ago. File photo

The Director of Military Prosecutions has signalled he will challenge what the Defence Forces consider a lenient sentence handed down by a military judge to an army instructor convicted of sexually assaulting a young female recruit.

The non-commissioned officer was fined a total of €2,690 at a court-martial in Dublin on Friday as well as forfeiting seniority in his rank for a period of 10 years as punishment.

Counsel for the DMP, Commandant Noel Conway, said it was “unprecedented” that someone convicted by a court-martial of a sexual assault could continue in the service of the Defence Forces. Comdt Conway suggested the DMP was likely to appeal the leniency of the sentence.

The army instructor, who cannot be named on order of the military judge, Judge Michael Campion, was found guilty last year following a three-day trial of sexually assaulting a female trainee at a military barracks several years ago.

The soldier had cupped his victim’s breast with his hand during a demonstration of first aid techniques. The location and date of the offence cannot be published as a result of a direction by Judge Campion.

The soldier was also found guilty of conduct prejudicial to good order and discipline contrary to Section 168 of the Defence Act 1954 for placing his groin on the back of his victim during the demonstration while remarking: “I would not stand like this as it looks wrong.” 

The accused, who has served in the Defence Forces for over 30 years, had denied all charges including another one of making an inappropriate comment during the same first aid training exercise for which he was found not guilty. The accused had remarked: “She has certainly done that before” when another female recruit pretended to remove a shirt from a mannequin during the training session.

Judge Campion said the victim could not recall if the sexual assault had lasted 10-20 seconds but knew it was long enough that she was able to look up and see the shock in the faces of other female recruits. The judge also noted how the victim had given evidence of feeling “very, very uncomfortable,” when the instructor had placed his groin into her body.

Sentencing

In approaching sentencing, Judge Campion said one of his primary objectives was the maintenance of discipline in the Defence Forces. He said the offences committed by the accused were “entirely unacceptable and a breach of the standards of discipline required of members of the Defence Forces.” 

The judge said the soldier had abused his position of confidence, trust and power with recruits who were in a new and stressful environment at the start of their military careers. He claimed the instructor had taken advantage of the situation in an opportunistic manner when they were entitled to be treated with dignity and respect.

However, the judge said he accepted that the offence arose from ignorance and lack of awareness about best practices on rules of physical contact rather than having a sexual motivation and he did not believe the soldier posed a risk to others.

The judge noted the accused has a previously unblemished service record and had received positive character references from 17 different witnesses. The court heard the instructor and his victim had engaged in a restorative justice meeting at which he expressed genuine horror, shame and remorse for his actions.

'Lower end of the scale'

Sentencing the soldier, Judge Campion said the Defence Forces adopt a “zero-tolerance” approach to inter-gender offending but he acknowledged the sexual assault was “at the lower end of the scale”. The judge said the offence did not involve any violence or threat of violence, while it was of short duration and the contact with the victim was outside her clothing.

While other soldiers convicted of sexual offences had received custodial sentences followed by discharge from the Defence Forces, Judge Campion said he did not believe such punishment was warranted on this occasion.

The soldier fought back tears as the judge remarked that he believed his offending was a “once-off episode that was out of character.” Acknowledging the case was “incredibly upsetting” for the soldier and his family, the judge said he had brought matters about entirely by his own actions.

Judge Campion fined the officer the maximum amount of 14 days’ pay – equivalent to €1,345 – for the sexual assault offence as well as making him forfeit the seniority within his rank for a period of 10 years.

He also fined the soldier €1,345 and reduced his pay rate by two points on a four-point scale – worth an estimated loss of €1,760 – for the disciplinary offence. The judge said there was no requirement to place the soldier on the register of sex offenders.

Although Comdt Conway had stated at a previous hearing that there was no legal reason why the soldier’s name could not be published, Judge Campion ruled that neither the offender nor his victim should be identified “in the interest of justice.” 

After highlighting how convictions for sexual offences normally resulted in custodial sentences and discharge, Comdt Conway said it was also open to superior officers to seek the discharge of a soldier, while members of the Defence Forces convicted of such crimes were deemed unsuitable for serving overseas.

However, Judge Campion said such matters were not something that could be addressed by the court-martial.