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Category: International, Violence against Women

Iraq Series Update: Sentencing Belies Death Penalty Risk for Rape-Murder Defendants

| December 20, 2006

U.S. Army spokesmen and defense attorneys keep talking about a possible death penalty for defendants in the gang rape and murder of 14-year-old Abeer Al-Janabi and her family in Mahmoudiyah, Iraq, in March 2006. Yet the death threat is inconsistent with recent history in U.S. military courts.

“Talk of the death penalty from military courts is all smoke and mirrors,” says Christine Hansen, executive director of the Miles Foundation, a victim service agency for people affected by sexual and domestic violence related to the military. “It just doesn’t reflect the pattern of sentencing, which is usually characterized as a slap on the wrist.”

The last time the U.S. armed services executed one of its own was in 1961, military sources say. The British newspaper The Independent says it was for the rape and murder of an Austrian girl. Recent convictions in international courts for genocide in Rwanda and the former Yugoslavia resulted in sentences ranging from decades to the maximum, life in prison, authorities on international law say. The death sentence rendered to Saddam Hussein is from an Iraqi court.

Compared to the reprimands, demotions, dismissals and brief detentions common for other homicides of civilians and detainees in Iraq and Afghanistan, the recent 90-year sentence in the Al-Janabi case is severe. U.S. Army Spec. James P. Barker confessed his role in the Al-Janabi rape and murders and was sentenced in November at his unit’s base at Fort Campbell, Kentucky. He is cooperating with prosecutors and will be eligible for parole in 2026, his attorney says.

Now two of the three other soldiers charged with rape and murder are mounting their defenses. Pfc. Bryan Howard won a court ruling December 15 ordering the Army to convene an Article 32 hearing—equivalent to a grand jury proceeding—to reconsider the evidence against him. Col. Stephen R. Henley, the military judge, found that his defense attorneys were not allowed to introduce mitigating and extenuating evidence on Howard's behalf during the original Article 32 hearing in Iraq.

Investigators said that former Pfc. Steven Green, Barker, Howard, and Pfc. Jesse V. Spielman and Sgt. Paul E. Cortez planned for weeks to rape the girl and tried to burn her body to destroy evidence of the assault. Three others in her family, including the girl's younger sister, were shot to death.

Spielman, along with his family and attorneys, insist on his innocence, and are raising money over the Internet for his legal defense. They claim he was an unwilling witness to a “horrific crime” committed by a single soldier, characterized as, “an unstable person.”

Though the site mentions no names, that soldier is presumably Green, who has been described as the ringleader, and was discharged from the Army for a personality disorder before military charges were brought. Green has pleaded innocent to rape and murder charges in federal court. The Spielman web site adds: “Jesse did not choose to be around this mentally unstable soldier. But rather, he was assigned.”

Such finger-pointing worked for defendants in cases stemming from prisoner deaths in Iraq and Afghanistan, as it does in civilian courts, news reports and analysts say. Reprimands, demotions, dismissals and brief detentions were the rule in those cases, which qualified as war crimes, experts say. When U.S. Army Chief Warrant Officer Lewis Welshofer was charged with murder in the death of an Iraqi detainee who was beaten, stuffed in a sleeping bag and sat on, his co-accused agreed to testify against him in exchange for charges being dropped. Welshofer’s superior was also granted immunity. Welshofer was convicted of negligent homicide. His sentence: a letter of reprimand, a fine of $6,000, and two months’ restriction to Fort Carson, Colorado.

Other detainee deaths resulted in even more lenient sentences. Army Pfc. Willie V. Brand was convicted of assault, maltreatment, and maiming of an Afghan who died in U.S. custody in Bagram. The victim was one of two prisoners found in the same cell, hanging with their hands chained above their heads, both beaten to death, according to an article by adjunct Georgetown University law professor Gary Solis, a retired U.S. Marine Corps prosecutor and judge. Brand’s sentence: demotion to private. A co-accused was also demoted, reprimanded and fined $1,000. A sergeant charged with assaulting one of the murdered men was honorably discharged without trial.

The Army’s lenience did not extend to convicted murderer Sgt. Hasan Akbar, whose victims were fellow soldiers in Kuwait. Akbar’s death sentence was affirmed by a judge at Fort Bragg, North Carolina, in November, according to the Army Times. Akbar was sentenced to death in April 2005 by unanimous vote of a military panel for a 2003 grenade attack in Kuwait that killed Capt. Christopher Seifert and Maj. Gregory Stone, and wounded 14 others. According to Elizabeth Hillman, a law professor at Rutgers University-Camden, he joins a handful of other convicts—predominantly men of color—on the military’s death row. The death sentence requires an automatic appeal, and approval of the President, a process expected to take several years.

World outrage at detainee abuse and deaths did not sway U.S. military courts. But persistent news coverage in Arab media has fueled global revulsion with the premeditated attack on the 14-year-old girl and her family that seems to have seeped inside the military justice system. “The range of sentences really indicates that it’s not a monolithic system,” says Solis, the retired military prosecutor and law professor. “I’m not bothered by a 90-year sentence for what they did to that girl.”

This update continues the Women’s Media Center series and organizing campaign focusing on crimes against Abeer Qassim Al-Janabi and their implications for the military and U.S. foreign policy. For more of the Iraq series, go to WMC Campaigns.