483 U. S. 435
June 25, 1987
Richard Solorio was a member of the Coast Guard. He was also a pedophile who sexually abused little girls, first off-base in Alaska, and later on-base in New York. The Coast Guard sought to try Solorio in military court for all the offenses, but this ran into a snag, because under the 1969 O’Callahan Supreme Court ruling, only “service connected” crimes could be subject to court-martial. The Alaska incidents, taking place off-base, arguably were not.
The Court ruled 6-3 that Solorio could be tried in military court for all offenses. Rehnquist, writing for the majority, overruled O’Callahan, finding it contrary to what had previously been long settled historical understanding. Rehnquist showed that under Article I of the Constitution, the military had full power to try all offenses committed by members of the armed forces. While the ‘military connected’ standard had some precedent in 17th and 18th century English law, the Founders had not incorporated it into the American law tradition. Furthermore, determining what crimes were really military connected had proven especially troublesome.
Stevens concurred in judgment – the lower court had found the Alaska crimes to be ‘military connected,’ so he saw no need to reconsider O’Callahan. Marshall’s dissent, joined by Brennan and Blackmun, heavily disputed Rehnquist’s history, finding strong evidence of a ‘military connected’ standard well into the 19th century. What’s more, court-martial lacked Fifth and Sixth Amendment protections, and due to the importance of those safeguards, he thought court-martial should only be resorted to in the most highly limited of circumstances. Off-base, off-duty sexual assault did not qualify, especially since there was no evidence that it disrupted military life in the ranks.
Given the present climate of extreme sensitivity about rape culture, I have to wonder how some of Brennan and Marshall’s dissents would go over today. In a whole slew of cases, they’re obstinately and obsessively protective of some pretty vile rapists. I will admit that their historical arguments in this decision do have some weight, but the majority’s position is just much better public policy. When you join the military, you place yourself under their authority completely. The notion that soldiers ought to be free to rape on their own time without military disciple is utterly contemptible.