The historic court martial of an Air Force two-star general in June ended in a guilty verdict for every charge except for one: sexual assault. Prosecutors and defense lawyers for Maj. Gen. Phillip Stewart presented cases to the jury that did not widely disagree on the evidence.
Instead, the verdict came down to the interpretation of what actions, words and thoughts constitute “consent” between two coworkers with very different ranks.
A panel of eight generals — six men and two women — found Stewart guilty of conduct unbecoming of an officer, dereliction of duty for flying an aircraft within 12 hours of drinking alcohol, adultery and an inappropriate relationship with a subordinate officer — all charges that stemmed from a TDY trip and hotel sexual encounter involving Stewart and a female staffer. Stewart did not deny that the sexual encounter occurred or that it was outside the rules for a married general officer. But the staffer, a Lieutenant Colonel, testified she felt trapped and unable to refuse Stewart’s advances, which the prosecution presented to the panel as over the legal threshold for sexual assault.
The panel acquitted Stewart on that charge.
“This is the biggest, the most high-profile, of the highest ranking general officer’s case that is resting solely on affirmative consent,” said Rachel VanLandingham, a former Air Force JAG officer. With affirmative consent, “the lack of verbal or physical resistance does not equal consent, which means the default is no longer the woman’s consenting.”
Defining ‘consent’
The military’s definition of consent has evolved over the years with changes to the Uniformed Code of Military Justice. Ten years ago, VanLandingham helped push Congress to change a UCMJ statute that allowed for silence to be deemed as consent for sex. In an op-ed in the Washington Post, VanLandingham warned that “even if a jury doesn’t buy that this passivity actually equals consent, the statute allows the defense to argue that they reasonably mistook the victim’s silence as consent,” she wrote.
As late as 2022, an Army judge appeared to embrace “silence as consent” as a legal defense. In a dissenting opinion in an appeal of a sexual assault conviction, the judge argued that as one soldier assaulted another soldier on a commercial flight, he “reasonably interpreted the victim’s silence, lack of physical resistance, and lack of positive verbal or physical response as consent, given the surrounding circumstances.”
UCMJ Article 120 was eventually updated and removed the concept of silence as consent. “An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance does not constitute consent,” the UCMJ now reads.
Still, Stewart’s court martial focused on a question that is still the subject of legal disagreement and cultural discussions: Did he have consent from his staff member?
Sherilyn Bunn, Stewart’s defense lawyer said the sexual assault charge case should not have gone to court martial. She also cautioned the military’s legal officials to take into account the effects of a sexual assault charge beyond the UMCJ and military-sphere – which in some states can mean sex offender registration.
“I think that leaders need to start assessing, if there is a conviction in this case: Do we believe that sex offender registration is necessary? Because if the answer to that question is no, then to me it is really irresponsible to send those cases forward to trial,” she said.
The decision to prosecute
During the initial investigation, it was not clear whether the nonconsensual sex charge would be part of the court martial. At Stewart’s preliminary hearing, military judge Col. Brian Thompson recommended the sexual assault charge not be referred to a court-martial, citing a lack of evidence.
Bunn said she was disappointed but not surprised that the charge went forward. In at least half a dozen unrelated cases that Bunn tried at Fort Bliss, Texas, she said, charging officials ignored the findings of preliminary hearing officers who found no probable cause and sent more sever charges to trial anyway.
Stewart’s case differed, she said, only in the higher stakes that officials faced in prosecuting a general.
“What was out of the ordinary I think was the behind the scenes of what would need to happen in a case like this,” Bunn said. “From a cost benefit analysis as far as like: What’s it gonna take us to do this case? How strong is the case? Does that make sense? From that perspective, I was a little surprised that they took it forward.”
Perhaps the best-known, recent case in military justice in which a preliminary hearing officer was ignored, VanLandingham said, was the case of Army Sgt. Bowe Bergdahl, the former soldier who pleaded guilty to desertion after he left his post in Afghanistan and was captured and held by the Taliban for five years. In July 2023, a federal judge vacated the conviction against Bergdahl arguing that he was denied a fair trial because the overseeing judge did not disclose his application for a civilian Justice Department job during the court-martial.
At Stewart’s trial, when the prosecution and defense teams had to address the allegations of sexual assault, prosecutors had to prove “whether or not a reasonable person in those circumstances would have thought she was consenting,” VanLandingham said.
A military JAG officer who declined to be named because they were not authorized to speak on behalf of the government said sexual assault cases in general are hard to prove because of the ‘beyond a reasonable doubt’-standard.
This is where a witness or victim’s testimony comes into play. According to the testimony of the woman who accused Stewart, which was reported on by local outlets that attended the court martial in person, the woman said she and Stewart had been drinking in his hotel room with two enlisted staff members. When those two left, she found herself alone on the sofa talking to Stewart. At one point, his arm was around her and they were kissing.
The woman admitted on the stand that she had never told Stewart “no.” She also recalled Stewart putting his hand out and saying, “come on,” which she took as a direction rather than a question. Stewart undressed her and the woman testified that she just “stood there” and had “felt trapped.”
Prosecutors argued that her actions did not constitute consent, and that a senior officer should have realized it.
But the defense argued Stewart believed he had consent.
While the law doesn’t require her to say “no,” VanLandingham said the events leading up to the sex could raise reasonable doubt, “especially for [the jury of] eight three-star generals who grew up in an Air Force and in a world in which if you didn’t say no, there was consent. I think it’s really hard to change that mindset.”
VanLandingham said she doesn’t think an acquittal means that the prosecution shouldn’t have brought the charge and added that she could’ve easily seen a guilty verdict based on the circumstances: a two star general supplying alcohol and propositioning his subordinate.
“I think it’s unreasonable, personally, for him to rely on, ‘Well, she just seems to be going along with it.’ That is not enough when you are a general officer with control over her career. That’s where I find this really problematic,” she said. “That is why I think this could have easily gone the other way too.”
VanLandingham also noted that Stewart was in charge of setting standards for junior officers as the commander of the 19th Air Force which oversees all pilot training.
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Bunn said the judge’s instructions directed the jury panel to take “all circumstances” into account, including Stewart’s rank, but she added that the complaining witness — a Lieutenant Colonel with 20 years in the military — wasn’t “a novice” in terms of dealing with differences in rank.
“Sure, being a major general and being a boss, that is a factor that the panel should have considered,” Bunn said. “But I think that it’s got to be balanced against what’s the experience of the complaining witness?”
Big losses in big case
The Stewart case is one of yet another high-profile military justice case where serious charges were dismissed or fell flat in the UCMJ process. The details have been varied, from reversals in the Bergdahl case and those of three MARSOC medics, to acquittals in major cases like the Bonhomme Richard fire and an alledged ‘insider attack’ at a Syrian base.
But the failure of military courts to convict in high-profile cases has not been lost on many.
“It’s just a B-team legal system with relatively poorly trained and underpaid lawyers,” a current JAG officer said. “It’s great for defense lawyers that know what they’re doing.”
Many of the high-profile cases that military prosecutors have lost have been criticized as ‘over-charged,’ with prosecutors charging more sever crimes than evidence indicated. The lawyers interviewed by Task & Purpose said that Stewart probably wouldn’t have faced a court martial without the sexual assault charge.
“I think that this was pushed in some way, shape or form because of General Stewart’s rank,” Bunn said.
One JAG officer said that there may be a broader trend of pushing cases to court martial because “nobody wants to call a victim a liar.”
Bunn said just because a charge doesn’t go to trial, it doesn’t mean that the victim involved is not believed. Sometimes the facts, circumstances or evidence does not support that it’s “a good case to take the trial,” she said.
‘Different spanks for different ranks’
The Stewart case also highlights an ongoing debate about a bifurcated military justice system for officers and enlisted personnel. Stewart had more than 30 years of military service under his belt along with five combat deployments.
“It’s not that he’s a major general. It’s the fact that he’s devoted 31 years of honorable service to this country. I would be absolutely shocked and offended if that wasn’t considered,” Bunn, Stewart’s defense counsel and a former Army JAG officer said.
“Enlisted folks are booted for less and he didn’t get that dismissal,” VanLandingham said. “We give a lot of lip service to general officers being held to a higher standard, but he was not here.”
But another JAG officer wonders if the decision to charge hard-to-prove cases can comes down to so-called ‘collateral consequences,’ or how a charge might effect a member’s career — which can vary widely for officers and enlisted.
“The junior enlisted gets a [Letter of Reprimand], it’ll hold up that promotion. If a junior officer gets an LOR, they will not, hard stop, promote. Period. Ever. A lot of times they’re adjusting the punishment because of the collateral consequences which you’re not supposed to do, but they do all the time,” the JAG officer said.
Bunn said that over the years, reforms to the UCMJ have changed it for the better but also said that the current climate and broader trends might end up doing more harm than good.
“There have been a lot of improvements over the past few years but one thing that I think has suffered is that the system has failed to empower commanders and leaders to make those tough decisions without having to worry about what the back blow is going to be from making it,” she said. “I think that that results in bad decisions being made.”